CIIVL LAW REVIEW

Saturday, July 16, 2022

- Law of preferential application – when the congress enacts a law that

the law is not applicable to a certain situation.
- Family rights and duties – national law of the decedent is application. In
international law – the forum may refuse to apply the applicable of
foreign law – such as the application will result to injustice to a citizen of
the forum or contrary to the public policy.
o In one case, the foreigner father obtained a divorce degree of
his country. Back to the Philippines he got married to another.
The former wife file a case VAWC for economic violence. In
defense, the national law of the husband has no obligation of
the minor child in the Philippines (since already divorced). SC
held, even in the national law the husband has no longer
obligation to support the child, the Philippines may refuse to
apply the foreign law as it will result to injustice to the citizen
of the Philippines and is contrary to the public policy of the
Philippines. Moreover, the Philippine law cannot be rendered
ineffective by the foreign law.
- Lex rae sitae – issues affecting properties are generally governed by
the law of the place where it is situated. Exception – on matters of
succession (art 16, par 2 – issue of order of succession; number of
successional rights or the concept of legitime; issue of intrinsic
validity of the testamentary provisions; the capacity to succeed which
are governed by the national law of the decedent);
- Validity of contracts – lex loci celebrationis; except if the contract
pertains to the location of the properties (lex rae sitae); relates to the
intrinsic validity of the contract – governed by the express agreement
of the parties as to applicable law, and intention of the parties.
- Breach of promise to marry. Not actionable wrong except if it is
attendant with moral seduction and the act is contrary to public
moral (for moral damages)

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- In the absence of proof of who died first, article 43 will apply.
Determination of who died first or the presumption of who died first.
- Psychological incapacity – tan-andal concept: PI is not necessarily by
reason of mental or psychological illness. The testimony of an expert
witness is the longer necessary. It is a persona condition of a person,
an enduring and durable aspect of person’s personality which is the
person’s structure. Incapable of comprehending the consequence of
marital life rendering him incapable of performing marital obligation.
Ordinary witnesses can testify as to the nature of the environment
from which the husband has been into while growing up. PI must be
incurable but not in the medical sense, to be understood in the legal
sense.
- Incestuous marriage – within the bloodline. Ascendant and
descendant of whatever degree, illegitimate or legitimate. Between
brother or sister, half or whole blood, legitimate or illegitimate.
- Void marriage by reason of public policy – between uncle and niece,
aunt and nephew. First cousins. Those former in parent and child in
laws, former step parent and former step child.
- Those because of relationship by reason of adoption, adopter and
adoptee. The adopted child, and surviving spouse of the adopter.
Legitimate adopter of the adopter, another child of the same adopter.
- If there is an intentional, animated, whether or not the surviving
spouse is aware of the killing of one of the spouses for marrying the
surviving spouse. Even in the absence of final judgment of conviction
because the guild can be proven in an action for the void declaration
of marriage.
- Article 40 applies only if the prior marriage is void ab initio. If this
prevision will not be followed; the subsequent marriage will be void
ab initio; there will be criminal liability of bigamy. Petition for
declaration of absolute nullity; will not apply a petition for petition of
correction of entry (because there is no marriage to speak of). Either
ACP or CPG or even a Complete separation of property.
- Article 40 – cannot be applied retroactively. (before the effectivity of
the family code).

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- 41-44. – subsequent marriage by reason of presumptive death of the
prior spouse. Requirements for the exception to bigamous marriage –
prior spouse has been absent for the period of 4 years (ordinary
absence), 2 years (extraordinary); the spouse present has well-
founded belief that the spouse is already dead; spouse present must
obtain a judicial declaration of presumptive death of the absent
spouse.
- What is the remedy of the spouse upon the appearance of the
absentee spouse – there should be filling of an affidavit of
reappearance in the appropriate registry by any interested person
(limited to absentee spouse and spouses in the subsequent marriage);
effect – will automatically terminate the subsequent marriage.
o The absentee spouse can also go to prove that he is alive, and
the absentee spouse will obtain declaration for the termination
of the subsequent marriage.
o

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