Topic outline 3

1. Theories of Personal Law

a. Domiciliary Principle
Answer:
Personal laws are determined by the place in which a person is domiciled

b. Nationality Theory
Answer:
Article 15 provides laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even though living
abroad. This connotes that any citizen of Philippines be covered by the personal law of the
Philippines wherever outside of the Philippine territory.

Tenchavez vs Escano

“Article 15 of the Civil Code of the Philippines (Rep. Act No. 386), already in
force at the time, expressly provided:

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

The Civil Code of the Philippines, now in force, does not admit absolute
divorce, quo ad vinculo matrimonii; and in fact does not even use that term, to
further emphasize its restrictive policy on the matter, in contrast to the preceding
legislation that admitted absolute divorce on grounds of adultery of the wife or
concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code
only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that
case, it expressly prescribes that "the marriage bonds shall not be severed"

“That a foreign divorce between Filipino citizens, sought and decreed after
the effectivity of the present Civil Code (Rep. Act 386), is not entitled to recognition
as valid in this jurisdiction; and neither is the marriage contracted with another
party by the divorced consort, subsequently to the foreign decree of divorce,
entitled to validity in the country”

Van Dorn vs Romillo

“It is true that owing to the nationality principle embodied in Article 15 of the
Civil Code, 5 only Philippine nationals are covered by the policy against absolute
divorces the same being considered contrary to our concept of public police and
morality. However, aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law”

Thus, pursuant to his national law, private respondent is no longer the husband
of petitioner. He would have no standing to sue in the case below as petitioner's
 husband entitled to exercise control over conjugal assets. As he is bound by the Decision
of his own country's Court, which validly exercised jurisdiction over him, and whose
decision he does not repudiate, he is estopped by his own representation before said
Court from asserting his right over the alleged conjugal property.”

Norma Del Socorro vs Wilsim

“The obligation to give support to a child is a matter that falls under family
rights and duties. Since the respondent is a citizen of Holland or the Netherlands, we
agree with the RTC-Cebu that he is subject to the laws of his country, not to
Philippinelaw, as to whether he is obliged to give support to his child, as well as the
consequences of his failure to do so.”

However, In the instant case, assuming arguendo that the English Law on the
matter were properly pleaded and proved in accordance with Section 24, Rule 132 of
the Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-Gonzales,
said foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and
established public policy of the forum, the said foreign law, judgment or order shall not
be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and

those which have for their object public order, public policy and good customs shall not
be rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.
Applying the foregoing, even if the laws of the Netherlands neither enforce a
parent’s obligation to support his child nor penalize the noncompliance therewith, such
obligation is still duly enforceable in the Philippines because it would be of great
injustice to the child to be denied of financial support when the latter is entitled
thereto.”
2. Personal laws

a. Family rights and duties

Answer:

Under the Family Code

Art. 68 of the said code provides that the “husband and wife are obliged to live together,
observe mutual love, respect and fidelity, and render mutual help and support.”

Article 194 of the same Code provide for the duty and extent of support that must be
provided for the family.

b. Status

Answer:
 Divorce decree acquired by spouses of are citizens of the Philippines is not valid even
though it is valid on the place where such divorce degree is acquired since Philippine
personal laws does recognize divorce therefore our courts cannot severe the marital ties on
ground the Filipino spouses have acquired a valid divorce degree abroad.

c. Capacity

Answer:
Article 37 of the Civil Code Juridical capacity, which is the fitness to be the subject of legal
relations, is inherent in every natural person and is lost only through death. Capacity to act,
which is the power to do acts with legal effect, is acquired and may be lost.
Also, restrictions, limitations or modifications of such capacity is also governed by the
Philippine personal law of a Filipino citizen.

3. Marriages in relation to Article 26 FC

Answer:

Article 26 of the Family Code provides that

“All marriages solemnized outside the Philippines, in accordance with the laws
in force in the country where they were solemnized, and valid there as such, shall also
be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6),
3637 and 38. (17a)

Where a marriage between a Filipino citizen and a foreigner is validly celebrated

and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him
or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine
law. (As amended by Executive Order 227)”

This article applies in case of mixed marriages where a Citizen of the Philippines is married to a
foreigner. Where such foreign spouse has validly acquired degree of divorce aboard, the
consequence would be recognized in the Philippines as valid.

It has been long recognized the scenario where foreigners who divorced their Filipino spouses
where the Filipino spouses is left without a choice but to remain a status of being married to
her/his foreign spouse despite the valid effect of divorce degree acquired by the foreign spouse
because the divorce decree is not recognized in the Philippines. To remedy the situation, Article
26 of the Family Code now allows the Filipino spouse to remarry. Without the second paragraph
of Article 26 of the Family Code, the Filipino spouse remains married to the divorced foreign
spouse. In order to remove this inequality or unfairness against Filipino citizen, the law allowed
Filipino citizen to enter into a valid subsequent marriage. Be it noted however, that this only
applies when a divorce degree is acquired by the foreign citizen where his/national law also
recognize such degree.

4. Intrinsic Validity of Contracts

 a. lex contractus

answer:
this rule governs the intrinsic validity of contract which may either be law of the place
expressly agreed upon by the parties or law of the place intended by them whether
expressly or impliedly

b. lex loci voluntatis

Answer:
Law of the place expressly agreed upon by the parties

c. lex loci intentionis

Answer:
Law of the place intended by them whether expressly or impliedly

5. Application of the foregoing rules

A contract the repair services of B. A is a resident of Philippines while B is citizen of Japan.

The place of performance of contract is at US.

In application of the foregoing rules, A and B may agree what law to apply whether what law to
apply in determination of the intrinsic validity of the contract whether Philippines, Japan or US
laws or it could be that intrinsic validity may be governed by the law which they intended
whether expressly or impliedly.