Conflict of Laws

COL
University of San Agustin
Atty. Sumido†
Sources:
➢ Conflict of Laws by Agpalo 2004
➢ Atty. Sumido’s lecture (1st Semester A.Y. 2021-2022 Edition)
➢ Other sources as may be indicated

!!! Trigger Warning: Sexual Abuse/Harassment!!!

Chapter I
Applicable Principles:

Principles in Private International Law

Comity ❖ Recognition which one state allows within its territory to the legislative, executive, or judicial acts of
another state, having due regard both to international duty and convenience and to rights of its own
citizens or of other persons who are under the protection of its laws.
❖ Contracts or rights acquired or made in one country, are also recognized and enforceable by the courts
of another country.
❖ Already part of the treaty, convention, agreement, and even our municipal laws

Lex Situs ❖ Applicable law regarding the acquisition, transfer and devolution of the title to property is the law
where the property is located.
❖ COMPARE: Lex Rei Sitate generally deals with land, actions relating to recovery of land

Lex Fori ❖ Law of the forum where the case is filed

Lex Loci ❖ Law of the place where a contract is entered into

Celebrationis ❖ Forms and solemnities of contracts
❖ General Rule:
➢ Where the contract was exhibited
❖ Exceptions:
➢ It involves National Law
■ We must follow our own set of rules/law
■ E.g. laws relating to familial rights, duties, etc.
■ Wherever the citizen is, this will still apply, abroad or not
➢ It involves immovable property (Lex Rei Sitae applies)
❖ In civil procedure, venue may be agreed upon by parties
➢ General rule: venue is only for the purpose of convenience
➢ XPN: If the venue has been exclusively agreed upon, then this must be followed. Terms such as
“exclusively”, “only”
■ XPN to the XPN: The jurisdiction of the Court was already acquired prior to this agreement

Lex Rei Sitae ❖ Law of the place where the thing is situated
❖ Applies to land; basically the same as Lex Situs

Lex Loci ❖ Law of the contracting parties

Contractus ❖ The test to determine the proper law of the contract would appear to be the system of law with which the
transaction has the closest and most real connection

Lex Loci Delicti ❖ The law of the place where the offense or wrong took place

Kilberg ❖ The forum is not bound by the law of the place of injury or death as to the limitation on damages for
Doctrine wrongful act; When the rule involves PROCEDURAL, the law of the forum is not bound by the country
where the place of injury or wrongful act arose.
❖ If the action is filed in Philippine court, the court will adopt its own Rules on Procedure.
❖ The law of the forum governs on the issue

Center of ❖ Interpret the contract based on the purpose for enforceable

Gravity ❖ E.g. the grouping of relationships
Doctrine ➢ You have a house and lot being sold, and there are fixtures included, will they be included as part
of the sale owned by the tenants?
➢ Interpret based on the “center of gravity”
❖ E.g. the wife is selling a portion of the property. Some properties are owned by the husband, some by
the wife. Without the consent of the husband, the wife sold the parcel of land. Would it attach to the
properties co-owned or the conjugal property?
➢ The applicable situation is that the sale should only involve property owned by the wife alone.

Remedies involved
1. Enforcement of rights that comes from the foreign country, and the Philippine court receives the subject of controversy.
a. Issue accrued from a foreign state, and later to be decided by the Philippine court
2. In case of foreign judgment, the judgment shall be enforceable and recognized
a. Are we obliged to enforce or recognize the foreign judgment?

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 i. Yes as per the principle of comity, or already covered by treaty or convention, or municipal law.
b. Is the recognition automatic?
i. No. It must be authenticated first. By determination in a proper forum or court proceedings.

Main purpose of Conflict of Laws

❖ To reconcile the differences of foreign and local laws

Set of Conflict of Laws that must be followed

❖ National Law or Conflict of Laws
➢ Article 15, 16, 17 of the CCP
➢ Article 26 of the FCP
➢ Notes: these are limited application for conflict of laws
■ Only few Jurisprudence

Can the court deny or refuse to resolve the case on the ground of lack of knowledge, jurisprudence, or customs?
❖ No. Article 9 of the CCP provides that the courts cannot deny judgment based on lack of such.
❖ The court has three options:
➢ Dismiss the case
➢ Apply based on local laws or domestic laws
➢ Use special laws or knowledge applicable to the issues submitted
■ Special knowledge may refer to referral to other courts.

Foreign judgments cannot be recognized entirely

❖ There must be authentication first
❖ In COL, there is always conflict with foreign and local laws.

Remedies in enforcement of foreign judgments

1. Laws may be accepted
2. Impliedly dismiss or remove the other laws
3. Excepting the other laws
a. An exception to the general application of law

Case of the Stewardess

❖ Existence of a contract stating that any breach thereof, Saudi Arabia has jurisdiction
❖ There was a case of sexual harassment in Singapore
❖ Court in Saudi Arabia said that they favor the pilot
❖ Stewardess filed the case before the Philippine Courts
❖ Was that right?
➢ Sir says yes

CASE: Pastor sexually harassing a teenager

❖ Case was filed for sexual harassment but was dismissed for lack of evidence
➢ Court awarded civil liability though
➢ The deposited amount is protected by the Bank Secrecy Act
■ When the court made an attachment to the Bank, the Bank refused based on the BSA
■ Although the BSA does not disallow or allow attachment of property in cases where the Court makes
civil judgments.
❖ Decision cannot be made because there is no specific applicable law
❖ SC said that:
➢ It is proper. Acquittal is only for lack of evidence. It does not mean the defendant is not guilty
➢ The attachment to the Bank is proper and the defense of the BSA is untenable
➢ Despite the absence of an applicable law, the Court can still decide based on the vehement urge of conscience.
➢ The civil liability is granted.

Chapter II
The Choice of Law
❖ Requirements in the application of the choice of law
➢ Touch on the procedural or substantive laws
➢ If there is a commission of a wrong or violation, it refers to the violation of substantive law
➢ In case of procedural rules, it refers to remedies available to parties.

Foreign law has no effect over territories

❖ We are confined to our own territorial jurisdiction, in the same manner such foreign countries are protected by theirs
❖ XPN:
➢ Laws that are considered as encroachment of territorial jurisdiction
➢ E.g. Anti-Piracy Law
■ You may chase the perpetrator even if they are outside of your jurisdiction
➢ If already part of our municipal laws
■ E.g. carriage of goods Sea Act, Warsaw Convention, law on transportation

How would you make the choice of law?

❖ First there must be the process of characterization
➢ Characterization refers to the determination of facts and evidence to form a decision on the choosing of the
applicable law.
➢ In the filing of a complaint, to know what specific complaint to file, you have to determine the facts,
circumstances, evidence, cause of action.

What are the applicable legal systems?

❖ Domestic or Foreign legal systems

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Remedy:
❖ By Contract
➢ Parties may stipulate what particular law is applicable.
➢ XPN: If the law is a prohibited law or the stipulation is void, contrary to public policy
■ Then, it is not acceptable
➢ XPN: If there is no jurisdiction
■ This cannot simply be agreed upon by the parties

Laws in the Philippines regarding COL”

Article 15. 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

Article 16. Real property as well as personal property is subject to the law of the country where it is stipulated.
However, intestate and testamentary successions, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said
property may be found. (10a)

Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the
country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be observed in their execution.
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. (11a)

According to Lex loci contractus:

❖ The law of the place where the contract was executed
❖ With respect to formalities and solemnities of the contract

Exceptions:

1. According to Article 15:

❖ 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.
❖ National Law of the party.
❖ E.g. A man and a woman, Filipinos, below 18, entered into marriage abroad, which was allowed by the laws of
that country. However, according to Philippine law, this is contrary to our own laws, since it involves Philippine
citizens. Therefore, their marriage cannot be recognized.

2. Domiciliary Rule v. Nationality Rule

❖ Domiciliary - Applicable based on the place where the parties were last domiciled
❖ Nationality - Regardless of residence of Filipinos, they have to follow the law of the nationality
■ This precedes the domiciliary rule

3. Natural v. Juridical Persons

➢ Juridical
■ The State, their political subdivisions, or those created by law

Article 37. 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. (n)
Article 38. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on
capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or
from property relations, such as easements. (32a)
Article 39. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being
a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these
circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on
account of religious belief or political opinion.
A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law. (n)

CHAPTER 2
Natural Persons
Article 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it,
provided it be born later with the conditions specified in the following article. (29a)
Article 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother's
womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four
hours after its complete delivery from the maternal womb. (30a)
Article 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will. (32a)
Article 43. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died
first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they
died at the same time and there shall be no transmission of rights from one to the other. (33)

CHAPTER 3
Juridical Persons
Article 44. The following are juridical persons:
(1) The State and its political subdivisions;

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 (2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as
they have been constituted according to law;
(3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality,
separate and distinct from that of each shareholder, partner or member. (35a)
Article 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed by the laws creating or recognizing
them.
Private corporations are regulated by laws of general application on the subject.
Partnerships and associations for private interest or purpose are governed by the provisions of this Code concerning
partnerships. (36 and 37a)
Article 46. Juridical persons may acquire and possess property of all kinds, as well as incur obligations and bring civil or criminal
actions, in conformity with the laws and regulations of their organization. (38a)

4. Where the Property is located

❖ The place where the property is located is the ruling law
❖ There must be registration of the property, if in the Philippines
❖ Article 16. Real property as well as personal property is subject to the law of the country where it is stipulated.

5. Law of the decedent

❖ Where the decedent is
❖ Renvoi doctrine
➢ The Doctrine of Renvoi is a legal doctrine which applies when a court is faced with a conflict of law
and must consider the law of another state, referred to as private international law (“PIL”) rules. This
can apply when considering foreign issues arising in succession planning and in administering
estates.
➢ An issue referring back to the issues
■ E.g. National Law of the decedent referring it to the law of the domicile
● Which law shall it be? It shall be interpreted based on our OWN laws
● Law of the place where the property is located
❖ Article 16. xxx However, intestate and testamentary successions, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said property may be found.

6. Forms and solemnities of the contract

❖ Follow the law of the place where it was located
➢ But as to enforcement of where the property was located, follow the law of the country where it is
located
❖ Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the
laws of the country in which they are executed.
❖ When the acts referred to are executed before the diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their
execution.
➢ It will be based on Philippine Law; it is an extension of our territory.
❖ 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.

7. Law of the place where it was created

❖ Via Corporation Code
➢ The creation, formation, organization or dissolution of foreign corporations or those which fix the
relations, liabilities, responsibilities, or duties of stockholders, members or officers of foreign
corporations to each other or to the corporation shall be governed by the laws of the country of their
creation or where they are incorporated
❖ Base on the law of the place where it was incorporated

8. If it is a borrowing statute
- by Bahrain or Saudi Arabia Law
❖ Prescriptive period
❖ XPN: if the statute is against public policy
❖ E.g. Under Bahrain Law, in a breach of contract, only within 1 year. The contract was executed in
Bahrain with a Filipino as one of the parties. Under the CCP, if a contract is in writing, the period of
limitations is 10 years. Under the Labor Code, recovery of backwages may be filed within 3 years.
➢ What will apply? Bahrain - 1 year, CCP - 10 years, LCP - 3 years
■ LCP, 3 years. Recovery refers to labor relations.
■ The Bahrain law cannot apply because our own law prohibits it by reason of
public policy, as stated in our Labor Code.
● Even if it is a borrowing statute, our public policy shall prevail
■ Civil Code cannot apply because LCP is more applicable.

Rule: Agreement by parties; it cannot cover jurisdiction

❖ Venue and forum may be agreed, but not jurisdiction.
❖ E.g. A debtor obtained a loan from a bank. Under that Singaporean Law, the bank is allowed to foreclose the property and
file an action for recovery of the sum of money. The contract says that it is allowed under Singaporean Law. There was an
agreement, but can the court acquire jurisdiction more than what is given by law? (Hongkong and Shanghai Banking)
➢ NO. even if there is an agreement, it cannot cover jurisdiction. Our laws say that foreclosure and collection are
alternative remedies, not joint remedies. You can only choose one remedy.
❖ What if there is no agreement?

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 ➢ Place of the contract, its performance and execution shall rule. XPN is if it involves real property, contrary to
public policy, or touches questions of jurisdiction.

Substantive vs. Procedural Right

❖ Substantive Right
❖ Procedural Right:
➢ Remedy: Law of the Forum

Center of Gravity Doctrine

❖ Resolved by the application of the law of the jurisdiction which has the most significant relationship to or contact with
event and parties to litigation and the issue therein
❖ RECALL: Example of the case of the house being sold
➢ Shall the furniture owned by the tenants be also included?
■ Of course not.
❖ RECALL: Example of the sale of the wife of the properties owned with husband.
➢ Shall the sale only be limited to the properties owned by the wife alone?
■ Yes.

Renvoi Doctrine
❖ A doctrine under which court in resorting to foreign law adopts rules of foreign country as to conflict of law,, which rule may
in turn refer to back to law of the forum."

Lex Fori
❖ Provides only for the forum or the court (or jurisdiction)
❖ Parties may defer the choice of the forum because this choice is only for convenience.
❖ The law of the forum, or court; that is, the positive law of the country or jurisdiction of whose judicial system the court
where the suit is brought or remedy sought is an integral part.

Caver’s Principle
❖ Five layers:
➢ The court, faced with a conflict of laws case, has to decide the same by applying first, the written laws;
➢ second, the customs of the place; third, by judicial decisions; fourth, general principles of law; and fifth,
principles of justice, reason and equity, in view of the circumstances of the case

Foreign Law v. Local Law

❖ GR: Local Law shall prevail
❖ XPN: Foreign Law is applicable if it is already part of our own municipal laws
➢ E.g. the Warsaw Convention
➢ XPN to XPN: If the foreign law is contrary to public policy, public interest
❖ In what instance may a foreign judgment be applicable?
➢ Prove the authenticity of the foreign law
■ Follow and comply with the rules of evidence
■ E.g. Showing the issuance of a divorce decree, show the law, documents that prove such divorce is
allowed. Authenticate the documents with the consular office or diplomatic office of that country
(Philippine embassy in Japan, for example)
➢ Publication or notice of that law for which the foreign judgment is based
■ If penal law, publication must be enforceable
■ XPN: Treaties, conventions, agreements need not be published, as long as parties agreed thereon.
● E.g. ICC, a penal law, need not be published since it is an International Treaty

Main idea of Chapter 2:

Characterization → choice of law → agreement of parties (not prohibited, against public policy or interest) → lex loci celebrationis
→ consider exceptions like real property, contract is contrary to our national law (national law prevails), should not cover
jurisdiction, should not be contrary to public policy

Chapter III - Citizenship and Domicile

Solemnities and Formalities
❖ GR: It follows the law of the country where the contract was executed
❖ XPNs:
➢ If it touches on our national law (Art. 15)
■ 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.
➢ Testamentary Succession (Art. 16)
■ intestate and testamentary succession, both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration, whatever may
be the nature of the property and regardless of the country wherein said property may be found.
■ National law of the decedent prevails
➢ Personal or real property is involved
■ Where they are located

Domicile
❖ Domicile → establishment or permanent establishment of a home where one intends to return (animus revertendi)
➢ You can have many residences, but only one (1) domicile

Citizenship
❖ State of a person wherein they are entitled to their protection of their political and civil rights
❖ Allegiance to the state where the State provides protection to his political and civil rights

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 ❖ Political rights
➢ Confined to the exercise to the right of suffrage, in this case.
❖ Civil rights
➢ All other rights

Requirements to become Filipino Citizen (Constitution)

❖ "Sec. 1. The following are citizens of the Philippines.
➢ (1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;
■ Consider those who are Filipinos under the 1973 Constitution
➢ (2) Those whose fathers or mothers are citizens of the Philippines;
■ Recall case of Tecson v. COMELEC (Fernando Poe case)
➢ (3) Those born before January 17,1973, of Filipino mothers, who elect Philippine citizenship upon reaching the
age of majority; and
➢ (4) Those who are naturalized in accordance with law.
❖ "Sec. 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to
acquire or person their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3) of
Section 1 hereof shall be deemed natural-born citizens.
❖ "Sec. 3. Philippine citizenship may be lost or required in the manner provided by law.
❖ "Sec. 4. Citizens of the Philippines who marry aliens shall retain their citizenship unless by their act or omission they are
deemed, under their law, to have renounced it.
❖ "Sec. 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law."

Modes of acquiring citizenship

❖ Jus soli v. jus sanguinis
➢ Jus soli is where the child is born
➢ Jus sanguinis is by the blood of their parents (followed by the Philippines)
❖ Naturalization
➢ More than three years is already considered as unreasonable in choosing citizenship

Two kinds of citizens

❖ By birth
❖ By naturalization

Dual citizenship
❖ The status of a person who is a citizen of two or more countries at the same time. Dual citizenship arises when, as a result
of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national
by the said states.
❖ One may apply (voluntary)
❖ One is deemed dual citizen without their choice
❖ Reacquisition of citizenship
➢ Previously lost it (and renounced), then acquired new citizenship (foreign), then later, reacquired Filipino
citizenship, without losing the foreign citizenship
❖ RA 9225
➢ Citizenship Retention and Re-Acquisition Act of 2003.
➢ Covers only natural-born Filipino citizens and not naturalized citizens.
■ Naturalized citizens cannot have dual citizenship, one as citizen of his country of origin and another
as naturalized citizen of the Philippines, which is inimical to the national interest.
■ Before he is allowed to take his oath as naturalized citizen he has to renounce, under oath, any and
all allegiances to any other country
■ The purpose is to prevent dual allegiance to two distinct jurisdictions.
➢ The dual citizenship is retained, under Republic Act 9225, except when he files a certificate of candidacy for an
elective position which requires that he renounce under oath his allegiance to any foreign country
■ Relinquishing of citizenship must be expressed
➢ Derivative citizenship
■ The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of
those who re-acquire Philip- pine citizenship upon effectivity of this Act shall be deemed citizenship of
the Philippines.
➢ Reacquisition
■ Naturalization (tedious)
● Administrative, judicial, or legislative
■ Repatriation
● Twin Requirements: What is needed is only the oath of allegiance and have it registered
at the Office of Local Registry where you last resided
● Fulfillment of those two is already considered as complete compliance
➢ Loss of citizenship
■ By naturalization in a foreign country;
■ By express renunciation of citizenship;
■ By subscribing to an oath of allegation to support the constitution or laws of a foreign country upon
attaining twenty-one years of age or more;
■ By accepting commission in the military, naval or air service of a foreign country;
■ By cancellation of the certificate of naturalization;
■ By having been declared by competent authority, a deserter of the Philippine armed forces in time of
war, unless subsequently a plenary pardon or amnesty has been granted; and
■ In case of a woman, upon her marriage to a foreigner if, by virtue of the laws in force in her husband's
country, she acquires his nationality
❖ Administrative repatriation
➢ If you execute a repatriation process, there is a “reawakening” of the old citizenship
■ In a case, the Court held that the Congressman can run for office because there is already a
complete compliance when he had the oath and the registration. (Bengzon III v. HERT)
❖ Judicial naturalization
➢ 5 years in the Philippines

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 ❖ In administrative naturalization → agencies may naturalize
❖ Legislative naturalization
➢ Congress confers the citizenship as a filipino citizen.
❖ Effects of naturalization
➢ Cannot have dual citizenship
➢ Case of Pakistani woman who was naturalized. She was given a passport. When she left for abroad, she
usually uses her Pakistani passport since it is more convenient.
■ Supreme Court ruled that using of the passport is not only for convenience, it is tantamount to
implied renunciation of her citizenship
➢ Case of Santiago
■ A Filipina woman boasted her US passport and uses the same when leaving the country
■ SC held that it is “normal” for Filipino citizens to boast that she has an American passport

Several types of Domicile

❖ Domicile by birth → the standard
❖ Domicile by choice → there must be abandonment of the old domicile and the bodily presence of the person in the choice
of domicile;
❖ Requirements
➢ Intention to return
➢ Intent to make it permanent
❖ Domicile by operation of law
➢ E.g. a person was incarcerated to a penalty of imprisonment. He was designated to live in the penal colony.
■ The law provides that his domicile is the penal colony; he cannot refuse this
❖ Domicile of the wife
➢ Usually, the husband and the wife fix the domicile or family home
■ If there is a conflict, it is the husband’s choice that will be followed or prevails
■ If the wife will not follow, the Court will decide which one is the family domicile

Domicile v. Residence
❖ "Residence is used to indicate a place of abode, whether permanent or temporary; domicile denotes a fixed permanent
residence to which, when absent one has the intention of returning. A man may have a residence in one placed and
domicile in another. Residence is not domi- cile, 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 intention of remaining will constitute domicile.”
❖ For political purposes:
❖

Domicile v. Venue
❖ In annulment of marriage, either petitioner or respondent must be a resident of that place six months at least prior to the
filing of the complaint

Chapter IV - Nationality and Domicile of Corporations

Corporations:
❖ Section 2 of the Corporation Code defines a domestic corporation as "an artificial being created by operation of law,
having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its
existence."
❖ Also considered as attributes of a corporation
❖ Determination: (Tests)

❖ Incorporation test:
➢ The law of the incorporation that has been corporated
➢ If incorporated under Philippine laws, Filipino corporation
❖ Grandfather Test
➢ The grandfather rule governs the strict application of the ownership of a corporation, namely, at least 60%
thereof must be owned by natural persons who are citizens of the Philippines, and it applies only to the
business enumerated in the Constitution.
➢ The first to incorporate shall be determined. If the incorporators were first Americans, then it is American
❖ Control Test
➢ Otherwise known as majority test
➢ What is controlling is the ownership of the shares of stocks

Domicile of juridical person

❖ "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
principle functions.
❖ Consider:
➢ What part of the company has the legal representation to establish the domicile?
■ Usually, the articles of incorporation indicate its principal place of business or office, and it is where its
residence is.
■ The principal place of business or office of a corporation is its residence for purposes of venue of suit
or action.

Domicile of foreign corporation

❖ The domicile of a corporation is in the state where it is incorporated.
❖ Requirements for foreign corporations:
➢ License to engage in business
➢ Appointment of resident agent
■ The agent is an extension of the principal office of the corporation. The Court need only go to the
resident agent, not the principal office.

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 ❖ Corporation without license
➢ Cannot sue
➢ Will be sanctioned: payment of damages or cancelling of the certificate of incorporation
➢ Will be considered liable, but nevertheless the party may file against the juridical person
■ The juridical person cannot file a case against the parties
➢ As compared to corporations engaged in business and with complete requirements
■ Can sue and be sued

Chapter V - Contracts
Contract
❖ GR: The law shall govern by the place where it was executed
➢ Refers to forms and solemnities ONLY
❖ XPNs:
➢ Many

Exceptions:
1. National Law (Article 15)
a. If national law is involved, Article 15 prevails
b. Article 15. 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.
c. E.g. With respect to marriage. Even if it is valid under US laws because the spouses got married at 17, the
marriage is not recognized under Philippine law because we require that the majority age is necessary (18 y.o.)
2. Real property is the object or subject matter
a. The law of the place where the properties are located, not the place where the contract was executed
b. Even if there is a present law that allows the maintenance of a law for execution, it being contrary to Article
15-17, the latter shall prevail

CASE: Government v. Frank

❖ A contract was executed in the US. In the US during that time, the parties may enter into a contract even though they are
minors. This is contrary to Philippine laws. In the USA, the contract is valid
➢ The contract calls for the gathering of garbage in Manila
➢ Frank failed to comply with the requirements to gather and collect garbage
❖ A case was filed against Frank
➢ Frank’s defense is that he is not liable because under Philippine laws, minors are not allowed to enter into
contract and therefore it is void.
❖ SC holds that he is still liable because the contract of where it was signed is the controlling contract

Stages in the case of a contract

❖ Preparation, negotiation, perfection, consummation (or enforcement)
❖ Contract is based on the law of the place
➢ If it is unenforceable or contrary to public policy or interest, the latter shall prevail
➢ In case of conflict, the grouping of relationships makes it enforceable

Case:
❖ A contract of sale where the lot is not specified but that it is owned by the wife.
❖ Doctrine: if cannot be enforced, it shall be based on the regrouping of the relationships.

Contract following based on policy or customs

❖ GR: law applicable is the law chosen by the parties
❖ XPN: the law is against public policy or custom
➢ This will prevail
❖ CASE: an agreement that Amari law shall apply. Under it, any action related to back wages and benefits shall be filed in a
period within 1 year.
➢ Under the Labor Code, you are allowed 3 years
➢ Under Civil Code, you are allowed 10 years
➢ Which of the three is the applicable law?
■ Labor Law of 3 years because it is the most applicable
■ Amari Law cannot be applied as it is contrary to labor laws of the Philippines
■ Civil Code cannot apply because Labor Code is more applicable as a labor issue
❖ XPN: If the law is pre-emptory or preventive
➢ If the enforcement of public policy is prevented, public policy will prevail
➢ Example: the case above.
❖ XPN: If the law is contrary to the foreign law applicable
➢ Not only to Philippine law but also the one applicable

CASE: Whether or not workers may be terminated if there is a specific period for which they are hired?
❖ Zamora v. Brent
❖ The agreement changes the probationary period and requisites for regularization
❖ Provisions of a contract cannot be contrary to law. In this case, the Labor Code, even if there was an agreement between
the parties.

CASE: Freight alongside ship

❖ There is still a completed contract since there was no actual delay.

CASE: Air transportation

❖ Refers to the provision of the Warsaw Convention
❖ Considered as a municipal law in the Philippines
❖ Limited Liability Rule
➢ GR: Maximum of $500 per luggage
➢ XPN: this does not apply if the employees of the company are guilty of willful conduct or gross negligence

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 ■ Owner of the goods has the right to recover damages more than the limited liability rule.
❖ CASE: Overbooking and so some passengers have to be rejected to accommodate special passengers
➢ Overbooking of not more than 10% of the seating capacity of an airline is allowable
➢ There is no violation if the above is complied with
❖ CASE: The luggage was delayed because it was transferred from one airline to another due to overloading.
➢ It caused delay to the passenger, who filed action for damages
➢ SC: The paramount concern of the airline is the safety of passengers
■ Delay without the fault of the company cannot grant damages

CHAPTER VI - Wills and Successions

Wills
❖ Solemn, revocable, formal disposal or distribution of a testator’s property and rights, taking effect after his death

Types
❖ Holographic will
➢ Written instrument by the testator himself duly dated, paged, and signed by himself
❖ Notarial will
➢ By way of intervention of notary public
➢ Requires the presence of at least three witnesses with attestation clause

Rules
❖ No will can be transferred without the procedure of probate of will

Probate of will, Stages

❖ Determination of extrinsic validity (Formal requirements)
➢ Whether the execution of the will complied with the formalities of the law
➢ The law provides for a strict performance of formal requisites
➢ This results to res judicata
■ Courts determine if the testator complied with formalities. This results into finality
❖ Determination of successional rights (intrinsic validity)
➢ If there are other properties later on to be discovered based on the will itself, it will not result into res judicata
■ Unless there is final distribution, this part will not result into res judicata
❖ Final distribution of estate

❖ Execution
❖ Based on the law of the place where it was executed, just like any contract.

Authentication
❖ The will is subject to authentication and probate

Foreign wills
❖ Can they be accepted or probated?
➢ Yes. Provided, that there is proper authentication of the will by our own courts
➢ If it is authenticated under foreign law, then it is authenticated in ours

Tayag v. Benguet Consolidated Corporation

❖ Domiciliary case
➢ The place of domicile where the bulk of the properties of the estate are located
❖ Domiciliary administrators have no authority beyond their territorial jurisdiction
➢ Distribute properties within that territory
❖ Ancillary administrators
➢ Also have no authority beyond their territorial jurisdiction
❖ In the case:
➢ The domiciliary administrator did not comply. Therefore, the court ordered that another certificate of stocks be
issued.
➢ Domiciliary administrator may have the bulk of the estate, but does not have territorial jurisdiction over that of
the ancillary administrator.
■ The act of the ancillary administrator is valid

Chapter VII - Property

Recall: applicable law is where the contract was executed
❖ XPN: law of where the property is the governing law
❖ Lex rei sitae

Two kinds of properties:

❖ Immovable - those deemed included; others not included are movable
➢ LTESMMAC
❖ Movable

Real properties
❖ GR: Cannot be acquired by aliens
❖ XPN: BP 185; former Filipinos may acquire by hereditary succession
➢ Maximum of 1000sqm (Urban), 1 ha. (rural)
➢ With BPI certification, can acquire property up to 5000sqm (urban), 3 ha. (rural)

CASE: The Holy See v. Rosario

❖ Holy See acquired property with the condition to put up a church. This was not complied with because there were too
many squatters. The acquisition was also alleged to be violative of the Constitution.

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 ❖ SC: it is not the fault of the Holy See when it failed to put up the Church. There were objections on the part of the
squatters. It is beyond their capacity.
➢ The Holy See, despite being a foreigner, can acquire property, because they have diplomatic immunity.

Real Property situated in another country

❖ CASE: Gov’t of the Phil. is trying to sell the Roppongi Estate in Japan. It was given to the Philippines as payment for
reparation during the war.
➢ It was being used by RP as the consular office. However, due to the shortage of dollars, they tired to sell the
property. They asked for the opinion of the DOJ.
■ The DOJ agreed that even if it is in another country, it can be sold also under the foreign country’s law
➢ But, it was questioned since being a consular office, it is an extension of RP’s territory, a public domain, and
therefore cannot be sold.
❖ SC: there is no valid sale because the property is of public domain
❖ CASE: Veterans Affairs
➢ The court has the right to adapt the decisions of this agency or agree in toto.
➢ Even if the court has the final judgment, the court may also rely on the decision of the government of the agency
to determine if there is proper issuance of justice.

END OF PRELIMS

Chapter VIII - Torts and Damages

Sources:
❖ Article 100 of RPC
➢ A
➢ In every criminal liability, there is always civil liability attached to the same
➢ Despite of absence of criminal liability, civil liability may still arise
❖ Article 20 of the CCP
➢ Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter
for the same.
❖ Article 2176 of the CCP
➢ Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter.
➢ Even if there is no pre-existing contract, there can still be damage
➢ Quasi-delict.

Tort v. Culpa
❖ Tort → Dolo
➢ There is intent to cause damage
➢ There is therpesence of malice
❖ Negligence → Culpa
➢ There is NO intention
➢ There is NO malice
➢ No bad faith
➢ But if it is so gross, it may result to that comparable as with malice or bad faith (Supreme Court)
❖ Culpas
➢ Aquiliana
➢ Contractual
➢ Criminal
❖ Damages:
➢ MENTAL
■ Moral, Exemplary, Nominal, Temperate, Actual, Liquidated
➢ Basis:
■ Article 19:
■ Every person must, in the exercise of his rights and in the performance of his duties, act with justice,
give everyone his due, and observe honesty and good faith.
■ Must be in consonance with good faith; otherwise, it will be a source of damages

Law of torts
❖ Lex loci delecti
➢ Based on the law applicable
❖ First choice: Terms and Agreements of the existing contract

❖ Second choice: Principle of Lex Loci Delicti

➢ Place where the delict was committed
➢ Lex loci delicti commissi
➢ If there is no contract present

❖ Third choice: Where public policy or interest will prevail

➢ This is the exception (XPN) to the first two
➢ Case: Saudi Arabia v. Court of Appeals
■ Stewardess was sexually harassed in Singapore
■ There was a contract between the stewardess and the company where in case of breach of contract,
the case will be filed in Saudi Arabia.
● However, it was the aggrieved party that was imprisoned instead of the perpetrator. The
basis of imprisonment was because the stewardess was not able to attend to their work on
time.

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 ● As a result, there was a compromise agreement where she will be released provided that
the case would be withdrawn. The stewardess agreed.
■ When she returned to Manila, she filed the case in RTC
● RTC acquired jurisdiction when Saudi A voluntarily did the same by filing an Answer.
◆ They had other allegations aside from lack of jurisdiction
■ Supposedly, the law applicable is based on the agreement. That is, Saudi Arabia. But if in the absent
of an agreement, where the delict happened. That is, in Singapore.
● It was filed in Manila
■ Is it right that the case was filed in Manila?
● YES. Public policy and interest prevails when the agreement of the parties or lex loci delicti
contravenes public policy and interest.
❖ CASE: Incident in Venezuela
➢ A ship owned by Philippine registry run aground in a canal in Venezuela. It prevented the other ships from
exiting the canal.
■ There was delay in delivery of goods.
■ The case was filed in RTC Makati
● This was not questioned by the defendant. This was favorable to them.
● Wildvalley (the ship) did not contest the jurisdiction.
● During the hearing, the Venezuela law was not authenticated.
■ Based on Lex Loci Delicti, it should have been filed in Venezuela.
■ Comparison of laws:
● Under Philippine law, there is due diligence in the choosing of employees
● Under Venezuelan Law, it does not matter. If there are damages, it must be paid.
◆ Allowed only determination of damages.
➢ Was it correct that the case was filed in Manila?
■ Yes.
➢ Should Philippine Law or Venezuela Law apply?
■ Philippine Law. Since the case was filed there.
■ Absent the authentication of Venezuela law, the latter cannot be applied.
❖ CASE:
➢ The usual application of the law is based on the law chosen of the parties
➢ A case was filed for violation of contract.
■ The contract involved seamen. The contract must be approved by the National Seamen’s Port.
➢ Filed the case in Hong Kong under the international union, not The Philippines.
■ Because the National Seamen’s Port is in Philippines.
➢ The contract, however, does not provide for exclusivity of the applicable law.
➢ SC:
■ Despite the fact that there is no agreement regarding applicable law, considering that there must be
prior approval of the National Seamen’s Port, it does not prohibit a party from filing the same
elsewhere.
■ Non-exclusivity of the agreement as to what particular law is applicable.
■ It was proper that it was filed in Hong Kong.
● This was to allow the aggrieved party to ask for a higher compensation.

❖ Fourth Choice: Principle of the State of the most significant relationship

➢ Combination of principles allowing the party to enforce his rights
➢ applicable where the acts constituting the cause of action occurred in two or more states, which ripened into a
cause of action in another state.
➢ GR:
■ The rights and liabilities of the parties with respect to an issue in tort are determined by the local law
of the state which, with respect to that issue, has the most significant relationship to the occurrence
and the parties and under the principles stated in §6.
■ Contacts to be taken into account in applying the principles of §6 to determine the law applicable to
an issue include:
● the place where the occurred,
● the place where the conduct causing the injury occurred,
● the domicile, residence, nationality, place of incorporation and place of business of the
parties, and
● the place where the relationship, if any, between the parties is centered.
➢ CASE: Bagong Silang Shipping Corporation
■ An agreement that the particular law shall be mandatory shall be applicable.
● There is exclusivity of a particular law applicable
● This should be applied as agreed upon by the parties

Several stages of application of lex loci delicti commissi

❖ Venue: based on the pleadings filed by the plaintiff
➢ Must be alleged in the complaint
■ For the court to know the intention of the filing of the case
➢ It must be stated in the complaint
➢ It must be proved in the complaint
➢ This is for the Court to acquire jurisdiction

Article 2176: Quasi-Delict

❖ The absence of diligence required
❖ In cases of common carriers:
➢ GR: Diligence required is utmost diligence of a very cautious person
■ In the absence of a law, the diligence required is diligence of a good father of the family
● Based on facts and circumstances based on the place and the time of the occurrence
➢ The parties cannot agree as to what the extent of diligence is required; it must be the law
■ XPN: If it is a private carrier, the extent may be agreed upon
● As long as it is not less than diligence of a good father of the family

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 ❖ Cases of limited liability rule
➢ This rule is considered valid.

Carriage of goods by Sea Act

❖ GR: A law which resolve the issue where the occurrence of the delicti happened in high contracting parties in between the
territorial jurisdictions of countries
➢ The law applicable is the ultimate place of destination
❖ XPN: if it involves in the maritime coast of the Philippines
➢ Civil Code applies
❖ Under the rules
➢ Provides for limited liability rule. The carrier is only liable up to 500$ per package. Is this valid?
■ Yes. However, if a higher value is granted, then that will prevail.
■ However, it does not consider when the employees of common carriers are liable for malfeasance or
misfeasance.
● If that is the case, the limited liability rule cannot apply.

Damage by a Shipping Company

❖ CASE: Venezuela
➢ In the absence of any other principle, the prevailing law is the law of the country where the vessel is registered
is the prevailing law

Bill of Lading
❖ A receipt but at the same time a contract
❖ Usually two parties: common carrier (transporter) and shipper (owner of the goods)
➢ What about the party who will receive the goods? Is he bound even if he is not a signatory?
■ Yes. The limited liability rule of the bill of lading makes the consignee liable even if he is not a
signatory.
■ There is a trust relationship that exists.
■ There is a stipulation in favor of the consignee. This is where the consignee is bound.

Chapter IX - Marriage
Marriage
❖ Definition
➢ 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 stipulation, except that
marriage settlements may fix the property relations during the marriage within the limits provided by law
❖ Under the FCP
➢ GR: All marriages are valid
■ Based on the law of the place where the marriage was celebrated
■ Lex loci celebrationis
➢ XPN: Not in contrast with our national laws
❖ Forms and solemnities
➢ Where it was celebrated
➢ Provided: not contrary to our national law
❖ Other XPNs:
➢ Contracted by parties below 18 years of age
➢ Polygamous marriages (Art. 41)
➢ Contracted through mistake
■ Identity, not social standing of a person
■ E.g. pretending to be rich, but is not, is not a ground for annulment
➢ Contrary to public policy
■ Those between collateral relatives, up to 4th civil degree
■ Parents and children, step, or in-law, adopted, survigin spouse, etc.

Formal requisites
❖ Requisites:
➢ Authority of solemnizing officer
➢ Marriage license
❖ Effect of flaw/defect:
➢ Marriage will continue
❖ Effect of absence
➢ NULL AND VOID marriage

Essential requisites
❖ Requisites:
➢ Male and female
➢
❖ Effect of flaw/defect:
➢ NULL AND VOID marriage

Divorce decree
❖ Article 26
❖ Requisites
➢ Confirmation of divorce decree
➢ Approval of petition to allow Filipino spouse to remarry
❖ Refers only to partial divorce
➢ In favor of the foreigner

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 ❖ Sec. 17
➢ Forms and solemnities
➢ Should not be contrary to our national law
➢ Applies to general perception of contract; not to marriages

Consequences of marriage
❖ Obligation of husband and wife
❖ Capacity of property relations
❖ Institution of family home
❖ Paternity
❖ Filiation
❖ Adoption and support

Marriage settlement
❖ Based on the applicable laws, not the agreement of parties
❖ In case of settlement, parties may agree stipulation which properties that they would like to establish
❖ Settlements:
➢ Conjugal Property
➢ Separation of property
➢ Absolute Community of Property
■ Default (i.e. no settlement made)
■ As long as married after August 4, 1988

Foreign marriages
❖ GR: must be authenticated
➢ Foreign judgment is prima facie evidence
❖ Usually needed to allow divorce
❖ GR: there must be authentication by our own local court
➢ Judgment by foreign court is not enough

Chapter X: Adoption

Adoption
❖ proceeding inrem, which creates between two persons a relationship similar to that which
results from legitimate paternity and filiation. Only an adoption made through the court is
valid in this jurisdiction. It is not a natural law at all, but is wholly and entirely artificial. To
establish the re- lation, the statutory requirements must be strictly carried out;
oth-erwise, the adoption is an absolute nullity. The fact of adoption is never presumed,
but must be affirmatively proved by the person claiming its existence, such as by the
decree of adoption issued by the court
❖ Relationship:
➢ Adopting parents and adopted child
❖ Inheritance
➢ Adopted child has the right to inherit from adopting parents
➢ Also has the right to inherit from his biological parents
➢ What will happen to the rights of the biological parents and the adopting parents upon approval?
■ There is a severance
■ Right is confined only to adopting parents and adopted child

Objective of the adopting parent when the child is being adopted

❖ Gives the adopted child a chance to have a family of his/her own
➢ Usually foundlings, abandoned children, etc.
➢ Given a home and parental guidance by the approval of the adoption
❖ Main thrust: to provide shelter, sustenance, and education to the adopted child
➢ New life, new home

Local and foreign adoptions

❖ Local adoptions
➢ Law is explicit with regard to the requirements
❖ Foreign adoption
➢ Inter-country adoption method
➢ A committee provides for the requirements allowing a foreigner to adopt a child
➢ Foreign spouse of a Filipino is allowed to adopt the relative of the Filipino psouse
■ Is considered LOCAL adoption; not foreign
➢ Considered valid even if approved abroad
➢ CASE: Adoption decree and the couple wanted it to be entered in local civil registry
■ LCR said that the adoption should be confirmed by local court
● Even if tehre was already foreign judgment/approval
● Recall: local courts have no judicial knowledge of foreign decrees
■ SC: In case of adoption, what is being required is only registration of foreign judgment in LCR
● No need for authentication because usually, in case of inter-country adoptions, we are
being represented by a representative.
● Therefore, the validity of the adoption is already confirmed.
■ GR: Requirement is only registration in LCR
● No need for adoption proceedings again in local court
➢ CASE: a medical malpractice was filed by a child
■ The child was born, but his mother died. The malpractice was filed against the foreign doctor.
■ The foreign doctor made settlement that the properties will be given to the child as a result of the
settlement of the malpractice case

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 ■ The father of the child wanted to sell the property.
● He obtained a foreign decision allowing him.
■ SC: even if there is a foreign judgment, the involvement of real property requires authentication of
foreign judgment
● Unlike in cases of adoption, parties are given supervision and determination whether or not
the adopting parent is allowed to adopt. Therefore, no need for authentication.

Court of jurisdiction
❖ The law of the adopted child that governs
➢ NOT the law of the adopting parents

Adoption proceedings
❖ Proceedings in rem
➢ There must be representation
➢ No need for personal service to all parties who may be adversely affected
❖ There must be representation from the OSG
➢ Through the office of the public prosecutor
➢ State must protect because it refers to the status of a person

Local adoption
❖ Requires:
➢ Child study report
➢ Home study report
■ From DSWD officer
■ Court picks a representative

Rights of adopted child

❖ Rights as a legitimate child
➢ Can use surname

Requirements in adoption
❖ Needs ancillary prayer
➢ That the adopted child has the right to use surname of the adopting parent
➢ Therefore, no need to have separate filing for name

Qualifications
❖ In adoption, state that you are qualified and have no disqualifications
❖ Financial capability to raise the child
➢ Therefore usually, if you already have a lot of children, you might be denied
❖ Capacity to provide sustenance, shelter, etc.

Who may adopt?

❖ RA 8552 provides

Effect of simulation of birth

❖ Simulation of birth
➢ Pregnant woman gives birth, then the child is given to another woman.
➢ The second woman will falsify documents and state that she is the mother
❖ Cure of simulation
➢ By way of adoption
❖ Effect:
➢ Null and void
➢ But, it may be ratified
■ There may be a correction of simulation of birth
❖ Criminal act
➢ It is punished by law
➢ But it may be corrected by adoption

Effects and consequences of adoption

❖ Child becomes the legitimate child of parent
❖ Parental authority is vested on the adopting parents
➢ Right of biological parents is terminated
➢ NOTE: In terms of succession, right to succeed from biological parents shall continue

Domestic adoption: foreign spouses

❖ Foreign spouse can adopt the child of their foreign spouse
➢ Or relative up to 4th degree of consanguinity

Who are those entitled to adoption?

❖ GR: child below 18 years of age
❖ XPN:
➢ Legitimate child of other spouse
■ Regardless of age or civil status
➢ Adoptive parent has always considered the adopted child as their own, even if adoption will take place when the
child is beyond 18
■ They considered the child as their own when the child was still a minor

Persons not entitled to adoption

❖ Child where prior to adoption, spouse has consistently treated the child as his own during their minority, and the person is
of legal age
➢ Law disqualifies such adoption

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 ❖ Alien without any diplomatic relations under the inter-country adoption
❖ Person already adopted
➢ Unless the previous adoption has been rescinded or revoked

Inter-country adoption of Filipino children; highlights

❖ Referral of guidance and for those who are entitled for adoption, and to adopt
➢ Referral to the would-be adopting parents if they are entitled
➢ Inter-country adoption Board
❖ Effect of Inter-country adoption Board
➢ Is there approval upon recommendation?
■ No.
■ Like any other ordinary adoption, it must be approved by the Court
➢ If a foreign court allowed it, but there was no referral/approval by the Board, is it allowed?
■ No.
■ There must be a proceeding, an action in rem where there is compliance of proper procedure, i.e.
referral from the Board.

Other requisites: Self Study Report and Home Study Report

❖ Must be recommended by the DSWD officer
➢ Based on self study and home study record
❖ Effect of absence
➢ Court cannot approve adoption; it would be denied

Conflict of Adoption
❖ Judgment rendered by foreign court must be confirmed by our own court
➢ Proper authentication

Chapter XI: Divorce, Declaration of Nullity of Marriage, Annulment of Voidable Marriage and Legal Separation

TITLE I
MARRIAGE
Chapter 1. Requisites of Marriage
Article 1. 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 stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by this Code. (52a)
Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer. (53a)
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their
personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.
(53a, 55a)
Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article
35 (2).
A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the
irregularity shall be civilly, criminally and administratively liable. (n)
Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37
and 38, may contract marriage. (54a)
Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the
contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses
of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which
shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be
sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing
officer. (55a)
Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court’s jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and
registered with the civil registrar general, acting within the limits of the written authority granted by his church or religious sect and
provided that at least one of the contracting parties belongs to the solemnizing officer’s church or religious sect;
(3) Any ship captain or airplane chief only in the case mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation,
likewise only in the cases mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a)
Article. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or
temple, or in the office the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of
marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both of the
parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated
by them in a sworn statement to that effect. (57a)
Art. 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party
habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. (58a)
Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic
of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer
with regard to the celebration of marriage shall be performed by said consular official. (75a)
Art. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such
license with the proper local civil registrar which shall specify the following:

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(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous marriage was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither
father nor mother and is under the age of twenty-one years.
The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection
with the securing of the marriage license. (59a)
Art. 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates or,
in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons
having custody of the originals. These certificates or certified copies of the documents by this Article need not be sworn to and
shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be
sufficient proof of its authenticity.
If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the
destruction or loss of the original or if it is shown by an affidavit of such party or of any other person that such birth or baptismal
certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen
days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument
drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such
instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and
citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest
of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or
the locality.
The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally
before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the
application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him,
be convinced that either or both of them have the required age. (60a)
Art. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of
the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial
decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage.
In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her
actual civil status and the name and date of death of the deceased spouse. (61a)
Art. 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the
ages of eighteen and twenty-one, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil
registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of
them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before
the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official
authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and
the affidavit, if one is executed instead, shall be attached to said applications. (61a)
Art. 15. Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask their parents or guardian for
advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be
issued till after three months following the completion of the publication of the application therefor. A sworn statement by the
contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached
to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the
sworn statement. (62a)
Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the
requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage
under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the
contracting parties have undergone marriage counseling. Failure to attach said certificates of marriage counseling shall suspend
the issuance of the marriage license for a period of three months from the completion of the publication of the application.
Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall
not affect the validity of the marriage.
Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the
counseling referred to in the preceding paragraph. (n)
Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a
marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board
outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public.
This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar
thereof. The marriage license shall be issued after the completion of the period of publication. (63a)
Art. 18. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars
thereof and his findings thereon in the application for marriage license, but shall nonetheless issue said license after the
completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interest
party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuances of the order. (64a)
Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the
marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall,
however, be issued free of charge to indigent parties, that is those who have no visible means of income or whose income is
insufficient for their subsistence a fact established by their affidavit, or by their oath before the local civil registrar. (65a)
Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue,
and shall be deemed automatically canceled at the expiration of the said period if the contracting parties have not made use of it.
The expiry date shall be stamped in bold characters on the face of every license issued. (65a)
Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a
marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective
diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an
affidavit stating the circumstances showing such capacity to contract marriage. (66a)
Art. 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state:

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(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to law, except in marriage provided for in Chapter 2 of this Title;
(5) That either or both of the contracting parties have secured the parental consent in appropriate cases;
(6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice in
appropriate cases; and
(7) That the parties have entered into marriage settlement, if any, attaching a copy thereof. (67a)
Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the
marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen
days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be
issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer
shall retain in his file the quadruplicate copy of the marriage certificate, the copy of the marriage certificate, the original of the
marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in place
other than those mentioned in Article 8. (68a)
Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all
interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for
marriage licenses shall be exempt from documentary stamp tax. (n)
Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly
in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the
marriage license was issued, and such other data as may be necessary. (n)
Art. 26. 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)
Chapter 2. Marriages Exempted from License Requirement
Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without
necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. (72a)
Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear
personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. (72a)
Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before
the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo
mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of
transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary
steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. (72a)
Art. 30. The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract,
shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within
the period of thirty days after the performance of the marriage. (75a)
Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an
airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (74a)
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in
articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (74a)
Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the
necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. (78a)
Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for
at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in
an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting parties are found no legal impediment to the marriage. (76a)
Chapter 3. Void and Voidable Marriages
Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with
either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with
the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its
solemnization. (As amended by Executive Order 227)
Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be
legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood. (81a)
Art. 38. The following marriages shall be void from the beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse.
(82)
Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by Executive
Order 227 and Republic Act No. 8533; The phrase “However, in case of marriage celebrated before the effectivity of this Code
and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect” has been

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deleted by Republic Act No. 8533 [Approved February 23, 1998]).
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void. (n)
Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has
a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under
the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a
summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse. (83a)
Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the
affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab
initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the
parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n)
Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:
(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;
(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if
either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a
previous marriage or in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such
donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance
policy, even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by
testate and intestate succession. (n)
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by
reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n)
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below
twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental
authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and
both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband
and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared
or ceased, such party thereafter freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and
appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)
Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage. (86a)
Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within
five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any
time before such party has reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other’s insanity; or by any
relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane
spouse during a lucid interval or after regaining sanity;
(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud;
(4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or
undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a)
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or
fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that
evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of
judgment. (88a)
Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the
spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court
shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom
they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. (n)
Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper
cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the
custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings
for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of
Articles 102 and 129.

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Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final
judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement
judicially approved, had already provided for such matters.
The children or their guardian or the trustee of their property may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the
children accruing upon the death of either of both of the parents; but the value of the properties already received under the
decree of annulment or absolute nullity shall be considered as advances on their legitime. (n)
Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the
spouses and the delivery of the children’s presumptive legitimes shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect third persons. (n)
Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding
Article; otherwise, the subsequent marriage shall be null and void.
Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has
become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article
53 shall likewise be legitimate.
TITLE II
LEGAL SEPARATION
Art. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed 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;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution,
or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
For purposes of this Article, the term “child” shall include a child by nature or by adoption. (9a)
Art. 56. The petition for legal separation shall be denied on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or act complained of;
(2) Where the aggrieved party has consented to the commission of the offense or act complained of;
(3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal
separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain decree of legal separation; or
(6) Where the action is barred by prescription. (100a)
Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102)
Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition.
(103)
Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is
fully satisfied, despite such efforts, that reconciliation is highly improbable. (n)
Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the
parties and to take care that the evidence is not fabricated or suppressed. (101a)
Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the
same powers and duties as those of a guardian under the Rules of Court. (104a)
Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of
the spouses and the custody and support of the common children. (105a)
Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but 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 Article 43(2);
(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this
Code; and
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover,
provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a)
Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her
in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the
places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the
complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the
insurance beneficiary shall take effect upon written notification thereof to the insured.
The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation
become final. (107a)
Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the
court in the same proceeding for legal separation. (n)
Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the
guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime.
The court’s order containing the foregoing shall be recorded in the proper civil registries. (108a)
Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and
shall specify:
(1) The properties to be contributed anew to the restored regime;

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 (2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts owing to each.
The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation,
with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to
protect the interest of creditors and such order shall be recorded in the proper registries of properties.
The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the
debtor-spouse has sufficient separate properties to satisfy the creditor’s claim. (195a, 108a)

Marriage
❖

Divorce
❖ Definition
➢ The legal dissolution of the marriage bond rendered by a competent court for causes defined by law which
arose after marriage.
❖ Civil Code
➢ This is not allowed in the Philippines

Difference with annulment of marriage

❖ Annulment
➢ Void from the very beginning (ab initio)
➢ ObliCon: Void contract cannot be subject to ratification; it remains as a void contract
■ In void marriage, not necessarily the same
■ If no valid declaration, the marriage subsists as a valid continuing marriage
● There is an implied or tacit ratification of a void marriage
➢ Oblicon: in voidable contracts
■ Here, marriage used to be valid, but a party may declare it as null and void and therefore annul the
marriage
● However, it used to be valid. But flaws and defects of the marriage resulted to its voidability
❖ RECALL: flaw of essential requisites
➢ Result: nullity of marriage
➢ Compare: flaw of formal requisite
■ Will not result to nullity of marriage (only its absence)

Article 26 Divorce Rule

❖ CASE: Spouses married in the US (or a foreign country). The contract is based on the contract where it was executed,
that is in the US.
❖ Partial divorce
➢ Allowed when the foreign spouse obtained a divorce decree and his/her marriage is terminated
■ Will not automatically make the Filipino spouse also single
➢ The Filipino spouse is thus allowed to benefit from that divorce and will no longer be bound by that marriage tie
(Republic v. Manalo)
■ Only after a petition to remarry or confirmation of divorce decree

What will happen if an American married a Filipina. The American went back to the US and asked for a divorce decree. He
found out that his former wife is having a relationship with another man. He filed an adultery case against his wife. Will it
prosper?
❖ No. The contract of marriage is still binding. Article 26 benefits the foreign spouse.
❖ However, the foreign spouse is no longer considered as the husband and therefore he has no right to file an action for
adultery against his Filipina wife.
➢ He who comes to court must come with clean hands.
➢ During the time he filed the case against his Filipina wife, he no longer has ties with her due to the divorce.

If the spouse failed to file an answer in a case of annulment, can they be declared in default?
❖ No. They can file any time an opposition against an annulment of marriage
❖ The oppositor may file an answer despite the fact that the court already gave ample time and such period lapsed.
➢ Despite the lapse, the answer can still be submitted at any time before judgment is rendered. (Family Code)

What if the respondent cannot be located or cannot be given a subpoena? What is the remedy of the plaintiff?
❖ RECALL: There must be evidence that the respondent received such complaint for annulment of marriage.
➢ Court must satisfy itself that the other parties were given a copy.
❖ It will still proceed. If the notice has not been served, it will continue because it is an action in rem.
➢ No personal notice is required against persons who will be gravely affected by the complaint.
➢ It is an action in rem.

Annulment of Marriage

Grounds
❖ (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
❖ (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted
with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;
➢ If there is knowledge of non-authority, there will be no marriage
➢ If there is no knowledge, the marriage is valid
■ Or if the parties (both) believed that the officer had authority
■ Good faith is material
❖ (3) Those solemnized without license, except those covered the preceding Chapter;
❖ (4) Those bigamous or polygamous marriages not failing under Article 41;
➢ Up to 4th degree of consanguinity
❖ (5) Those contracted through mistake of one contracting party as to the identity of the other; and
❖ (6) Those subsequent marriages that are void under Article 53.

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 ❖ Others:
➢ Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such
incapacity becomes manifest only after its solemnization.
➢ Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship
between the parties be legitimate or illegitimate:
■ (1) Between ascendants and descendants of any degree; and
■ (2) Between brothers and sisters, whether of the full or half blood.
➢ Art. 38. The following marriages shall be void from the beginning for reasons of public policy:
■ (1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
■ (2) Between step-parents and step-children;
■ (3) Between parents-in-law and children-in-law;
■ (4) Between the adopting parent and the adopted child;
■ (5) Between the surviving spouse of the adopting parent and the adopted child;
■ (6) Between the surviving spouse of the adopted child and the adopter;
■ (7) Between an adopted child and a legitimate child of the adopter;
■ (8) Between adopted children of the same adopter; and
■ (9) Between parties where one, with the intention to marry the other, killed that other person’s spouse,
or his or her own spouse.
❖ Others
➢ The lowly child

If there is a decision of declaration of nullity, are you already allowed to remarry?

❖ Not yet. Decision of the court is merely one step away from remarrying.
❖ There must be a certificate of finality of annulment
➢ THIS is necessary for being allowed to remarry

Dowry
❖ Not a condition for the solemnization of marriage
❖ Only applicable in some indigenous customs

Jurisdiction
❖ RTC → Exclusive jurisdiction
❖ Petitioner must be a resident at least 6 months prior to the time of filing
➢ Venue is where he resided (as above)
➢ There must be proof of residency (e.g. telephone billing, electric or water billing)
■ Failure to submit requirements is a ground for dismissal of the complaint/petition
❖ Venue
➢ Place of the plaintiff
➢ Or residence of the respondent (at plaintiff’s discretion)

Rules on annulment of marriage

❖ If the basis is psychological incapacity, plaintiff is allowed to initiate action even without psychological/evaluation report
(Tan-Andal v. Andal)
❖ Pretrial:
➢ Parties must be present

If the groom did not appear during his wedding, can he be criminalized?
❖ No. No such law punishes it.
❖ However, if there were expenses already spent (food, catering, venue, etc.), the one who abandoned shall shoulder wholly
the expenses for the food and catering.

Refugees
❖ GR: Nobody can force themselves to enter in the receiving country
➢ Immigrants cannot stay in the land of the host country without their consent
❖ XPN: humanitarian purposes

Is a motion to dismiss allowed or not?

❖ No.
➢ MD only covers lack of jurisdiction
❖ XPN: It covers lack of jurisdiction
➢ If it is anything else, there is a right to confront the would-be assassin

Is the pre-trial necessary for the parties to appear?

❖ Yes. It is mandatory.
➢ Plaintiff and defendant
➢ Including the parents, witnesses of plaintiff and defendant

Why is there a need to conduct pre-trial?

❖ One way of resolving the case is through dialogue–pre-trial

Final and executory

❖ There must be a period where the parties did not file any opposition
❖ Right to collect of other parties is deemed waived.
➢ But not totally abandoned
❖ There must be closure of conjugal property and finality of judgment

Finality of judgment
❖ Needed for the termination of judgment
❖ Can no longer be overturned
➢ Unless the parties consider it as an improper decision

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Right to keep property
❖ Allowed

Cohabitation of foreign spouse

❖ Allowed by law
➢ Intimate relationships which were previously broken is allowed
❖ Requires a prior final judgment

Psychological Incapacity
❖ Article 36
➢ A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization.
❖ Either or both of them are suffering from psychological capacity
❖ Definition
➢ Generally, no specific definition; depends on facts and circumstances
➢ General term: Failure to perform a marital obligation
➢ No specific definition; allows the judge discretion
❖ Psychological report no longer necessary (Tan-Andal v. Andal)
➢ Even with the absence, based on the appreciation of facts, the court can determine whether there is
psychological incapacity

Legitime
❖ The parties must agree what their property regime is
❖ In case of failure to choose the legitime, the default legitime is property of the husband and wife
➢ Absolute Community of Property
❖ Can be ACP, Conjugal Property of Gains, or Separation of Property

Legal separation

Legal Separation
❖ Separation of Bed and Board; marriage tie of parties is still intact
❖ Grounds:
➢ A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed 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;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage
in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
➢ For purposes of this Article, the term “child” shall include a child by nature or by adoption.
❖ Still an action in rem
➢ If there is a notice of summons and they fail to appear, they are given more time to be present

Who is entitled to file?

❖ Recall grounds

When to file?
❖ Within a period of five (5) years from the occurrence of any of the following grounds
➢ For homosexuality or lesbianism, it is considered as a continuing and valid approval
■ Knowledge of this is considered as condonation
❖ Otherwise, it is considered ratified

Submission of memoranda
❖ Required to be submitted by the parties
❖ If the other party will not comply, it is not subject to sanction
➢ Law does not allow such sanction

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