CONFLICTS OF LAW

Domicile and Adoption

Submitted By:
Arienza, Ellen Lovea J.
Bagalihog, Francis Aleli H.
Billedo, Ram

Submitted To:
Atty. Clarisa Risel G. Castillo-Taleon
 I. INTRODUCTION
Conflict of laws is that part of the law which deals with the extent to which the law of the state
operates and determines whether the rules of one or another state should govern a legal situation.
According to Paras, it is that part of the municipal law of a state which directs its courts and
administrative agencies, when confronted with a legal problem involving a foreign element, whether
they should apply a foreign law or foreign laws.

There are some certain concepts which are regarded as a determinative factor in the conflict of laws.
Such concepts include domicile.

The developments of technology and mobility from one state or another brought the emergence of
problems. This is because in the process of moving about, an individual has to determine which law
applies to him.

I. DOMICILIARY THEORY

In countries adhering to the domiciliary rule of determining the personal law of a person, domicile is
an important point of contact.

The Domiciliary Theory in Conflict of Laws is one whereby the status, condition, family rights and
obligations, and capacity of a person are governed by the law of his domicile or the lex domicilii.
While the Philippines follow the nationality rule, there are certain matters in which our courts apply
the lex domicilii rule. Thus, Article 816 of the Civil Code provides that the “will of an alien who is
abroad produces the effect in the Philippines if made with the formalities prescribed by law of the
place in which he resides, or according to the formalities observed in his country, or in conformity
with those which this Code prescribes.”

II. DEFINITION OF DOMICILE

Domicile is that place where a man has his true, fixed and permanent home and principal
establishment, and to which whenever he is absent he has the intention of returning.1

1
Black’ Law Dictionary, Fifth Ed., p. 425
The concept of domicile is not uniform throughout the world. To civil lawyers in Europe who do not
apply common law, it means habitual residence. While at common law, it is regarded as equivalent
to a person’s permanent home.

In the Philippines, domicile has been defined as the fixed permanent residence to which, when
absent, one has the intention of returning.2 It has also been defined as the place where a party
actually or constructively has his permanent home, where he, no matter where he may be found at
any given time, eventually intends to return and remain.3

The law of the forum governs domicile. “In applying its rules of Conflict of Laws, the forum
determines domicile according to its own standards.”4 In short, the Philippine court where a conflict
of laws case is filed determines, based on its law, the domicile of one or both parties, when their
domicile is in issue.

For the exercise of civil rights and the fulfillment of civil obligations, Article 50 of the Civil Code
defines domicile as follows:

“For the exercise of civil rights and the fulfillment of civil obligations, the
domicile of natural persons is the place of their habitual residence.”

As above defined, for the exercise of civil rights and the fulfillment of civil obligations, the domicile
of natural persons is the place of their habitual residence. It means the individual’s “permanent
home,” “a place to which, whenever absent for business or for pleasure, one intends to return, and
depends on facts and circumstances in the sense that they disclose intent.”5

Domicile includes the twin elements of the fact of residing or physical presence in a fixed place and
animus manendi, or the intention of returning there permanently.6

2
Uytengsu v. Republic, 95 Phil. 890 [1954]
3
Aquino v. COMELEC, 248 SCRA 400 [1995]
4
Sec. 13, Restatement of the Law, Conflict of Laws, 2d
5
Ong v. Republic, 19 SCRA 966 [1967]
6
Romualdez-Marcos v. COMELEC, 248 SCRA 300, 323 [1995]
III. DOMICILE AND RESIDENCE DISTINGUISHED

It has been held that there is a difference between domicile and residence.

“Residence is used to indicate a place of abode, whether permanent or

temporary while Domicile denotes a fixed permanent residence to
which, when absent one has the intention of returning. A man may
have a residence in one place and domicile in another. Residence is not
domicile, but domicile is residence coupled with the intention to
remain for an unlimited time. A man can have but one domicile for the
same purpose at any time, but he may have numerous places of
residence. His place of residence is generally his place of domicile, but
it is not any means necessary so since no length of residence without
the intention of remaining will constitute domicile.”7

When a person has more than one dwelling place, his domicile is in the earlier dwelling place unless
the second dwelling place is his principal home. Home is defined as the place where a person dwells
and which is the center of his domestic, social, and civil life.

IV. DOMICILE AND RESIDENCE FOR POLITICAL PURPOSES

Domicile may be understood in many ways. However, for the exercise of political rights, such as
running for an elective position, domicile and residence mean the same thing.

The word “residence” for meeting the qualification for an elective position, means “domicile” or the
individual’s permanent home, a place to which, whenever absent for business or for pleasure, one
intends to return, and depends on facts and circumstances in the sense that they disclose intent. It
includes the twin elements of the fact of residing or physical presence in a fixed place, and animus
manendi, or the intention of returning there permanently. In showing compliance with the residence
requirement, both intent and actual presence in the place where the candidate intends to run must
satisfy the length of time prescribed by the Constitution or the law.8

7
Ibid.
8
Domino v. COMELEC, 310 SCRA 546 [1999]
The place where a party, actually or constructively, has his permanent home, his domicile, is that
which the Constitution refers when it speaks of residence for the purpose of election law. The fact
that a person is registered as a voter in one district is not proof that he is not domiciled in another
district. It is the fact of residence, not a statement in the certificate of candidacy, which ought to be
decisive in determining whether or not an individual has satisfied the Constitution’s residence
requirement.9

Owning a house is not required to establish residence and domicile. It is enough that he should have
lived in the municipality or district or in the rented house or in that of a friend or relative for the
required period. For nowhere is it required by law or the Constitution that a candidate should own a
property in order to be qualified to run.10 All that is required is his intention to make it his domicile
for all political purposes as shown in his contemporaneous words and acts.11

V. DOMICILE AND CITIZENSHIP DISTUINGUISHED

Domicile in general speaks of one’s permanent place of abode, while citizenship or nationality
indicates ties of allegiance and loyalty. A person may be a citizen or national of one state and a
domiciliary of another. Filipinos who are immigrants abroad, like the holders of green cards in the
U.S., are still Filipino citizens, but their domicile is the country to where they have permanently
migrated.

VI. DOMICILE AND VENUE IN ESTATE PROCEEDINGS

For purposes of venue in estate proceedings, residence and domicile are different. Domicile refers to
the fixed, permanent residence to which, when absent, one has the intention of returning, while
venue in estate proceeding is the place where the settlement of estate is filed and corresponds to
“residence” in the context of venue provisions, which is nothing more than a person’s actual
residence or place of abode, where he resides therein with continuity and consistency. The word
“reside” in the place where the settlement of estate should be filed does refer to legal residence or

9
(Perez v. COMELEC, 317 SCRA 641 [1999]
10
Co v. HRET, 199 SCRA 692 [1991]
11
Aquino v. COMELEC, 248 SCRA 400 [1995]
domicile but to personal, actual or physical habitation of a person, actual residence or place of
abode.”12

VII. DOMICILE OF JURIDICAL PERSON

Article 51 of the Civil Code defines the domicile of juridical persons or corporations. It reads:

“Art. 51. When the law creating or recognizing them, or any other
provision does not fix the domicile of juridical persons, the same shall
be understood to be the place where their legal representation is
established or where they exercise their principal functions.”

For purposes of determining a corporation’s domicile, Section 14 of the Corporation Code requires
that the articles of incorporation of a Philippine Corporation must state the place where the original
office of the corporation is to be established or located, “which place must be within the
Philippines.” Thus, the place of incorporation of a Philippine Corporation is also its domicile.

The domicile of a corporation is the place where its principal place of business or principal office is
established. The articles of incorporation indicate its principal place of business or office, and it is
where its residence is. The fact that it maintains branch offices in some parts of the country does not
mean that it has a residence in said places because a corporation can have only one residence at a
time, which is the place of its principal office as indicated in its articles of incorporation filed with
the Securities and Exchange Commission.13

The principal place of business or office of a corporation is its residence for purposes of venue of
suit or action. The residence of its president is not the residence of the corporation because a
corporation has a personality separate and distinct from that of its officers and stockholders. Nor is it
its branch office in a place other than its principal place of business. Hence, there is improper venue
where the suit against a corporation is filed in the residence of its officer or in the place of its branch
office, unless such residence or branch office is also the principal business of the corporation. 14

12
Jao v. Court of Appeals, 382 SCRA 407 [2002]
13
Clavecilla Radio System v. Antillon, 19 SCRA 379 [1967]
14
Sy v. Tyson Enterprises, Inc., 119 SCRA 367 [1982]
 A defectively organized partnership which the law recognizes as de facto insofar as third persons are
concerned, can possess a domicile for purposes of its de facto existence.15

Under Article 51 of the New Civil code, the domicile of a partnership organized under Philippine
law, is like domestic corporations, “the place where their legal representation is established or where
they exercise their principal functions.”

VIII. DOMICILE OF FOREIGN CORPORATION

The domicile of a corporation is in the state where it is incorporated. Nonetheless, a corporation

formed in one state may, for certain purposes, be regarded as a resident in another state in which it
has offices and transacts business.16

Thus, while a foreign corporation is domiciled in the state of its incorporation, it may also be
considered a resident in the Philippines, where it does business. What effectively makes such a
foreign corporation a resident corporation in the Philippines is its actually being in the Philippines
and licitly doing business in the country.

As for a foreign corporation that has been granted a license to operate or to do business in the
Philippines, it acquires domicile in the country by virtue of said license. The purpose of the rule
requiring a foreign corporation to secure license to do business in the Philippines is to enable the
courts to exercise jurisdiction over them or the regulation of their activities in our country.17

IX. LEGAL CLASSIFICATION OF DOMICILE

The first kind of domicile is Domicilium Originis or Domicile of Origin which is one that is
attributed by law to every person at birth. It is assigned to a person by the law at the moment of his
birth.

The domicile of origin of:

15
MacDonald v. NCBNY, L-7991 [1956]
16
Northwest Orient Airlines, Inc. v. Court of Appeals, 241 SCRA 192 [1990]
17
Granger Associates v. Microwave Systems, Inc., 189 SCRA 631 [1990]
 a. a legitimate child is the domicile of choice of his father at the moment of the birth of the
child. However, if the child is a posthumous one (born after the death of the father) its
domicile of origin is the domicile of choice of the mother
b. an illegitimate child is the domicile of choice of the mother at the time of the birth of the
child.
c. a legitimated child (an illegitimate child who subsequently is granted the status of a
legitimate child by the process called legitimation) is the domicile of the father at the time of
the birth, not the legitimation, of the child. This is so because “legitimation shall take effect
from the time of the child’s birth.” (Art. 273, Civil Code)
d. an adopted child is not the domicile of the adopter but the domicile of the real parent or the
parent by consanguinity.
e. a foundling (an abandoned infant whose parents are unknown) is the country where it was
found.

The point of domicile of origin ensures that everyone has one domicile and only one domicile at all
times. If a person leaves the country of his domicile of origin, intending never to return to it, he
continues to be domiciled there until he acquires a domicile of choice in another country. But if a
person leaves the country of his domicile of choice, intending to never return to it, he ceases to be
domiciled in that country unless and until he acquires a new domicile of choice, his domicile of
origin revives. The domicile of origin acts as a fallback, whenever there is no other domicile, it
comes to fill the gap.

Another kind of domicile is Domicilium Necesarium or Domicile by Operation of Law or

Constructive Domicile. This type of domicile refers to all those who lack capacity to choose their
own domicile: infants, married women, idiots, and the insane. It is their legal disabilities that prevent
them from making a choice. The domicile of a dependent person is the same as and changes (if at
all) with the domicile of the person on whom he is, as regards his domicile, legally dependent.

The rules for the Constructive Domicile are as follows:

1. Rules for infants:

 a. If legitimate is the domicile of the choice of the father. If the father is dead, the mother
generally exercises authority over the child; hence, this time the constructive domicile is the
domicile of choice of the mother.

The following articles of the Civil Code are in point:

Art. 328. The mother who contracts a subsequent marriage loses the
parental authority over her children, unless the deceased husband,
father of the latter, has expressly provided in his will that his widow
might marry again, and has ordered that in such case she should keep
and exercise parental authority over their children.

Art. 333. If the widowed mother who has contracted a subsequent

marriage should again become a widow, she shall recover from this
moment her parental authority over all her unemancipated children.

It would seem, therefore, that in our country the legitimate child follows the domicile of whoever
exercises parental authority over him.

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

b. If illegitimate is the domicile of the choice of the mother after all she is supposed to take care
of the child.
c. If adopted is the domicile of choice of the adopter.
d. If a ward is the domicile of choice of the guardian over the person of the ward.

2. Rules for Married Women:

a. If the marriage is valid is the domicile of choice of her husband. This is because, in general,
the husband fixes the residence or domicile of the family. In certain instances, however, the
wife is allowed to have a separate domicile; in this case, her domicile will not be constructive
anymore; it will be her domicile of choice. In the following instances, among others, the wife
may be allowed to have a separate domicile:

i. If the husband lives abroad, except if living abroad is in the service of the
Republic.
ii. If they are legally separated
iii. If the husband forcibly ejects the wife from the conjugal home so that he
may have illicit relations with another
iv. If there is a separation de facto of the spouses. However, it must be noted
that under Art. 221 of the Civil Code, “any contact for personal separation
between husband and wife shall be void and no effect.”

The reason for the general rule has been well stated by the Supreme
Court in the following manner: “This contention of the petitioner is not
tenable. It is true, as a general of law, that the domicile of the wife
follows that of her husband. This rule is founded upon the theoretic
identity of person and of interest between the husband and the wife,
and the presumption that, from the nature of the relation, the home of
the one is that of the other. It is intended to promote, strengthen, and
secure their interests in this relation, as it ordinarily exists, where union
and harmony prevail. But the authorities are unanimous in holding that
this is not an absolute rule. Under modern laws it is clear that many
exceptions to the rule that the domicile from of the wife is determined
by that of her husband must obtain. When married women as well as
children subject to parental authority live, with the acquiescence of
their husbands or fathers, in a place distinct from where the latter live,
they have their own independent domicile, which should be considered
in determining jurisdiction in cases of provisional support,
guardianship of persons, etc. If the wife can acquire a separate
residence when her husband consents or acquiesces, we see no reason
why the law will not allow her to do so when, as alleged in the present
case, the husband unlawfully ejects her from the conjugal home in
order that he may freely indulge in his illicit relations with another
 woman. Under no other circumstance could a wife be more justified in
establishing a separate residence from that of her husband. For her to
continue living with him, even if he had permitted it, would have been
a condonation of his flagrant breach of fidelity and marital duty.
Furthermore, in this case no longer was there an identity of persons and
of interest between the husband and the wife. Therefore, the law
allowed her to acquire a separate residence. For it would do violence to
the plainest principle of common sense and common justice of to call
this residence of the guilty husband, where the wife is forbidden to
come, the domicile of the wife."18

b. If the marriage is voidable, prior to the annulment the constructive domicile of the wife is the
domicile of choice of the husband, unless she is permitted under circumstances to select her
own domicile of choice.

After the marriage is annulled, the woman ceases to be the wife, hence, being no longer
under any legal disability, she no longer has any constructive domicile. If she decides to
remain in the domicile of the former husband, this would be her own freely selected domicile
of choice, not her constructive domicile.

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

3. Rules for Idiots, Imbecile, and the Insane:

Idiots, imbecile, and the insane are generally devoid of any intelligence that may enable them to
freely select their own domicile of choice, hence, the law assigns to them their domicile:

18
De la Vina v. Villareal, 41 Phil. 13
 a. If they are below the age of majority, they are still considered infants under the law, thus, the
rules for infants are applicable to them.

b. If they are above the age of majority a distinction must be made:

i. If they have guardians over their persons, they have to follow the domicile of choice of
their guardians
ii. If they have no guardians over their persons, their constructive domicile is in the place
where they had their domicile of choice shortly before they become insane.

It should be remembered, however that a voluntary domicile of choice may be acquired by insane
individuals if at the time of the choice they were in their lucid intervals. Furthermore, the choice of
voluntary domicile does not require as much as intelligence as would normally be essential for
binding oneself in a contract; to enter into an agreement respecting a contract, one must possess
capacity to assume burden; on the other hand, the choice of domicile does not necessarily carry with
it the assumption of obligations. According to Goodrich, in changing domicile, the actor merely
subjects himself to the operation of the legal system of the new jurisdiction – a system that must be
presumed to guard rights and privileges and to operate equally upon all. So that the test is said to be
whether the party had sufficient reason and understanding to choose his place of residence.19

d. Other Persons
i. Convict or prisoner –Prisoners fall under the category of those who are given a domicile of
another by law. He is not free to have a domicile of choice; his domicile is that which he has
possessed prior to his incarceration
ii. Soldiers – since they are compelled to follow the dictates of the military, domicile is that
before their enlistment.
iii. Public Officials or Employees abroad – since their stay abroad is in their official and not in
their personal capacity, their domicile is the one before they were assigned elsewhere, unless they
voluntarily adopt their place of employment as their permanent residence. Public officers who are
assigned with public duty will have to reside in other places for the discharge of their duty. In such
cases, public officers can retain their original domicile which they have in their respective state.

19
Goodrich, Conflict of Laws, p. 94
Table 1:20
DOMICILE OF ORIGIN DOMICILE OF CHOICE
Acquired at birth Acquired after birth
Assigned only to infants Assigned to persons under legal disabilities
Never changes Changes from time to time

3. Domicile of Choice or Voluntary Domicile

A domicile of choice is a self-acquired domicile. It is a domicile which a person chooses to

replace his/her former domicile, which may be either a domicile of origin or domicile of choice.
Only a legally competent person can choose his/her domicile.21
According to common law every independent person can acquire a domicile of choice by
satisfying the following conditions. They are:
a. he must have a freedom of choice;
b. he must make an intention to change their current residence;
c. he must have an intention to make the new residence his/her permanent residence.

However a person can abandons his/her domicile of choice in a country by satisfying the following
two conditions:

a. he must cease to reside in the country; and

b. he must have an intention to cease their residence permanently.

Table 2: 22

DOMICILE OF ORIGIN CONSTRUCTIVE DOMICILE OF CHOICE

DOMICILE
Assigned by law Assigned by law Result of the voluntary will
and action of the person
concerned

XI. SITUS OR ECLECTIC THEORY

The capacity, status, and family relations of a person are governed not necessarily by the law of his
nationality or the law of his domicile but by the law of the place (situs) where an important element
of the problem occurs or is situated.23

20
San Beda College of Law Memory Aid Civil Law. (2017).
21
Domicile. (n.d.). Retrieved October 12, 2017, from https://domicile.uslegal.com/types-of-domicile/domicile-of-choice/
22
San Beda College of Law Memory Aid Civil Law. (2017).
23
Paras, J. L. (2016). Civil Code Persons and Family Relations (Vol. I). Manila: Rex Bookstore.
I. Kinds of Participation of the Individual Concerned
a. If participation is active – When he does an act voluntarily, the governing law is the law of
the actual situs of the transaction or event.
b. If the participation is passive – When the effects of the act are set forth or determined by law,
the governing law is the law of the legal situs, i.e., the domicile of the individual concerned.

Example: The marriage between two Filipinos in the USA

(a) The act of getting married is voluntary, the validity of the marriage is governed by its
actual situs, or the lex loci celebrationis (Art. 26, first par., Family Code)

(b) With respect to the rights and obligations, and property relations, of the Filipino couple,
however, they are governed by the national law of the spouses, which regulates or fixes such
matters between them; in other words, the legal situs is the national law of the spouses. (Art.
80, Family Code)

XII. GENERAL RULES ON DOMICILE

1. No person can ever be without a domicile or every natural person must have a domicile. A
person’s domicile of origin prevails until he acquires a new domicile
2. A person cannot have two simultaneous domiciles. He can only have one domicile for a given
purpose, for a given time, under the law of a particular state. He may have residence in different
places but he is domiciled only in the place where he intends to make a permanent home.
Reason: The very purpose for identifying one’s domicile is to establish a connection between the
person and a definite legal system
3. A natural person, free (not a prisoner) and sui juris (one of age and under no disability), can
change his domicile at pleasure
4. A domicile, once acquired, is retained until a new one is gained
5. The presumption being in favor of the continuance of an existing domicile, the burden of proof
is on the one who alleges that a change of domicile has taken place.
6. To acquire a new domicile of choice, the following must concur: residence or bodily presence in
the new locality; an intention to remain there (animus manendi); and an intention not to return to
the former abode (animus non revertendi).
XIII. LOSS OR RETENTION OF DOMICILE

Domicile may be lost through the performance of certain acts indicative of an intent to
abandon domicile. These acts, however, may also indicate the intent to retain one’s domicile.

A person may abandon his domicile by choosing a new domicile, actually residing therein,
and intending that place to be his permanent residence.24

In the case of Marcos v. Commission on Elections, 25 the Court ruled that:

Moreover, while petitioner was born in Manila, as a minor she naturally followed the
domicile of her parents. She grew up in Tacloban, reached her adulthood there and eventually
established residence in different parts of the country for various reasons. Even during her
husband's presidency, at the height of the Marcos Regime's powers, petitioner kept her close
ties to her domicile of origin by establishing residences in Tacloban, celebrating her
birthdays and other important personal milestones in her home province, instituting well-
publicized projects for the benefit of her province and hometown, and establishing a political
power base where her siblings and close relatives held positions of power either through the
ballot or by appointment, always with either her influence or consent. These well-publicized
ties to her domicile of origin are part of the history and lore of the quarter century of Marcos
power in our country. Either they were entirely ignored in the COMELEC'S Resolutions, or
the majority of the COMELEC did not know what the rest of the country always knew: the
fact of petitioner's domicile in Tacloban, Leyte.

Similarly, in the case of Jalosjos v. COMELEC: 26

Indeed, the Court has repeatedly held that a candidate is not required to have a house in a
community to establish his residence or domicile in a particular place. It is sufficient that he
should live there even if it be in a rented house or in the house of a friend or relative. To
insist that the candidate own the house where he lives would make property a qualification
for public office. What matters is that Jalosjos has proved two things: actual physical
presence in Ipil and an intention of making it his domicile.

XIV. ABSENTEE VOTING AND DOMICILE

24
Pe Benito, G. R. (2016). Conflicts of Law. Manila : Rex Bookstore.
25
248 SCRA 300 (1995)
26
G.R. No. 191970, April 24, 2012
 It is a state policy of the Philippines to enfranchise its citizens who are qualified to vote in the
elections. There is thus a requirement of residency before a person can exercise his right of suffrage.
This residency requirement, however, must conform with the doctrine of domicile so that persons
who have the intention of returning to their domicile may be allowed to vote despite being absent
thereat for a considerable time.
The efforts of OFWs in nation-building are therefore recognized by giving them the right to
vote despite lacking actual residency in the Philippines. However, even if they lack actual residency,
they must still demonstrate that the Philippines is their domicile and that they have the intention of
returning before they can be allowed to vote. 27

XV. VENUE IN ESTATE PROCEEDINGS

The residence of a person is significant in determining the venue of estate proceedings and
ordinary civil actions. Residence, for venue purposes, usually refer only to actual residence or
place of abode, and not to a person’s domicile. As held in Baritua v. Court of Appeals:28

We have held that the residence of a person must be his personal, actual or physical
habitation or his actual residence or abode. It does not mean fixed permanent residence to
which when absent, one has the intention of returning. The word resides connotes ex vi
termini actual residence as distinguished from legal residence or domicile. Actual residence
may in some cases be the legal residence or domicile, but for purposes of venue, actual
residence is the place of abode and not necessarily legal residence or domicile. Actual
residence signifies personal residence, i.e., physical presence and actual stay thereat. This
physical presence, nonetheless, must be more than temporary and must be with continuity
and consistency.

27
Pe Benito, G. R. (2016). Conflicts of Law. Manila : Rex Bookstore.
28
G.R. No.100748, February 3, 1997