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Brief Survey of Problems
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Brief survey of
CHOICE OF LAW
PROBLEMS in FAMILY
RELATIONSM. L. Perete
Adamson University
Fam
ily R
elat
ions
:MA
RRIA
GE
Laws Relating to family rights
and duties, or to status, condition and legal capacity of
persons are binding upon
citizens of the Philippines,
even though living abroad.-
Art. 15, Civil Code All marriages solemnized
outside of the Philippines in
accordance with the laws in
force in the country where
they are solemnized, and valid
there as such, shall be valid in
the country… - Art. 26, Family
Code
Fam
ily R
elat
ions
:MA
RRIA
GE –
extr
insi
c va
lidity
The formal requirements for marriage are governed by the law of the state of celebration – Art. 2, Hague Convention on the Celebration and Recognition of Validity of Marriage
Fam
ily R
elat
ions
:MA
RRIA
GE –
extr
insi
c va
lidity
In Adong v. Cheong Seng Gee (1922), the SC held that while the Philippines adheres to the lex loci celebrationes in
determining the extrinsic validity of marriage, proof of the formal requisites for such marriage and compliance therewith is still necessary
Fam
ily R
elat
ions
:MA
RRIA
GE –
extr
insi
c va
lidity
In People v. Mora Dumpo (1935),
Dumpo was convicted of bigamy
by the CFI of Zamboanga for
contracting a second marriage
under Mohammedan (Islamic)
law without dissolving her first
marriage to another Moslem. On
appeal, she claimed that her
second marriage was null and
void for lack of consent from her
father, or the leader of their
tribe, as required by their faith.
The Court, taking cognizance of
the testimony of the Imam,
reversed the finding of guilt.
Fam
ily R
elat
ions
:MA
RRIA
GE –
extr
insi
c va
lidity
In Wong Woo Yu v. Vivo (1965),
WWY was admitted as a non-quota
immigrant upon her representations
that she was married a Filipino while
in Chingkang, China in 1929. A year
after, the Board of Commissioners
reversed. On Appeal, the SC upheld
the BoC on the ground that even if
the country adheres to lex loci
celebrationes, WWY was unable to
adduce proof of the Chinese law on
the formal requisites of marriage.
Using processual presumption, the
Court applied Philippine law and held
that there is no showing that WWY’s
marriage to a Filipino complied with
the formal requirements under our
domestic laws.
Fam
ily R
elat
ions
:MA
RRIA
GE –
extr
insi
c va
lidity
In Yao Kee, et al v. Aida-Sy
Gonzales (1988), an alleged
marriage celebrated in accordance with the local
customs in a Province in China
was refused recognition by the
Court. On appeal, the SC
upheld, stating that while
custom (or unwritten law) is
recognized as a rule of law
under the lex loci celebrationes
rule, however, it needs to be
proved like a foreign written
(civil) law by oral testimony of
witnesses and/or published
decisions of courts.
Fam
ily R
elat
ions
:MA
RRIA
GE –
extr
insi
c va
lidity
In Board of Commissioners, et al. v.
Villarosa, et al., (1991), the deportation
and arrest of William Gatchalian some 28
years after their entry into the Philippines
was questioned. The BOC claimed that G
was not Filipino because the marriage of
his grandfather and father to chinese
women in China were not proved. The
Court brushed aside the argument upon
the reasoning that (1) the non-presentation
of chinese law on marriage could not be
blamed on G who entered RP at 12 years
of age; and (2) the testimony of G’s father
and uncle re: said marriages before the
Philippine consulate is not self-serving and
admissible in evidence as statements or
declarations regarding family status or
pedigree. The Court further held that
following the presumption of validity of
marriage under Art. 220 of the Civil Code,
one who asserts the invalidity of marriage
has the burden of proving non-compliance
with the requirements of foreign law.
Fam
ily R
elat
ions
:MA
RRIA
GE –
extr
insi
c va
lidity
Exceptions to the Lex Celebrationes
Rule (Art. 26, FC):1. Either or both parties are below
18 years of age;2. Bigamous/polygamous
marriages;3. Subsequent marriage performed
without recording in the Civil
Registry and Registry of Properties the judgment of
annulment or declaration of
nullity of former marriage, the
partition and distribution of
properties of the spouses, and
the children’s presumptive
legitimes
Fam
ily R
elat
ions
:MA
RRIA
GE –
extr
insi
c va
lidity
Exceptions to the Lex Celebrationes Rule (Art. 26,
FC) – cont.:4. Mistake as to identity of
contracting party;5. One of the parties is psychologically incapacitated to comply with
essential marital obligations;6. Incestuous marriages; and
7. Void marriages by reason
of public policy.
Fam
ily R
elat
ions
:MA
RRIA
GE –
extr
insi
c va
lidity
Exceptions to the Lex Celebrationes Rule (Art. 26,
FC) – cont.:Void Marriages on grounds of public policy (Art
38, FC)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 child5. 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 the adopted child and the
legitimate child of the adopter;
8. Between adopted children of the same
adopter;9. Between parties where one, with the
intention to marry the other, killed the other
person’s spouse of his or her own spouse
Fam
ily R
elat
ions
:MA
RRIA
GE –
intr
insi
c va
lidity
Intrinsic validity of marriage refers to legal capacity to enter into marriage, and free consent. In mixed marriages, the law that governs the substantive validity of marriage is the national or domiciliary
law (lex nationalii/domicilii) of the parties.”
Fam
ily R
elat
ions
:MA
RRIA
GE –
intr
insi
c va
lidity
Sottomayor v. De Barros (1877,
England) The parties were
Portuguese subjects who were first
cousins but domiciled and residing
in England. Before they reached
18, they were married in England.
While English law allows marriage
between first cousins, Portuguese
law, deems them incestuous and
therefore void unless a Papal
dispensation is previously
obtained. The woman later sought
nullification of the marriage.
Applying the lex nationalii
principle, the Court declared the
marriage void even as it recognized that such marriage
would be valid in England.
Fam
ily R
elat
ions
:MA
RRIA
GE –
intr
insi
c va
lidity
In Re Dalip Singh BIR’s
Estate (California, 1948).
Singh, an Indian, died intestate in California. Two
women alleged to have been
legally wedded to him for
over 50 years in accordance
with the law and custom of
the Jat community. The Court recognized the polygamous marriage and
recognized the two as heirs
of the decedent.
Fam
ily R
elat
ions
:DI
VORC
E
Divorce presents a conflicts of law problem if
the parties nationality or domicile is connected to another state. In such an
instance, the recognition of a divorce decree, the division of marital property, custody of children, and support will
be ascertained following COL principles.
Fam
ily R
elat
ions
:DI
VORC
E
Jurisdiction, following the most significant relationship rule, is based on domicile of one of the parties or matrimonial domicile.
The grounds for divorce are dictated by the lex fori.
Fam
ily R
elat
ions
:DI
VORC
E –
Betw
een
Filip
inos
The Philippines does not recognize divorce, and one
obtained abroad by Filipinos are not recognized
in the Philippines (Art. 17,
CC). However, in mixed marriages where the foreigner spouse obtains divorce will be recognized
here. This, to remedy the
uneven status between the
spouses in a mixed marriage.
Fam
ily R
elat
ions
:DI
VORC
E –
Betw
een
Filip
inos
In Tenchavez v. Escano (1965), the parties were both Filipinos who, after marriage, did not live together as husband and wife. Thereafter, the wife left for the United States and – while still a Filipino -- successfully procured a divorce decree in Nevada. She later re-married. The husband sued for legal separation and damages which the Court granted.
Adverting to Art. 17 of the Civil Code, the Court held that divorce is antithetical to public policy, and would only favor the wealthy who can afford to travel and obtain divorce abroad.
Fam
ily R
elat
ions
:DI
VORC
E –
Betw
een
Filip
inos
In Lavadia v. Heirs of Luna (2014), Lavadia married Atty. Luna in the Dominican Republic after he obtained a divorce in that jurisdiction from his first wife. Atty. Luna likewise obtained an approval of an agreement for the dissolution of his property with his first wife in DR. Thereafter, he and Lavadia lived together as husband and wife.
Upon Atty. Luna’s death, Lavadia sued his heirs who have excluded her from partition of his estate. The Court, in denying her petition: (a) refused to recognize the divorce in DR; (b) declared Luna’s marriage to his first wife subsisting until his death and his marriage to Lavadia bigamous; and (3) concluded Lavadia was unable to prove her co-ownership rights over assets in the estate.
Fam
ily R
elat
ions
:DI
VORC
E –
In M
ixed
Marri
ages
In Van Dorn v. Romillo (1985), Van Dorn, then Filipino, and Upton, an American, were married in Hong Kong and later obtained a divorce in the US. Van Dorn later remarried. In a petition, Upton moved for accounting and management of their conjugal assets.
The Court held that Upton is estopped from asserting their marriage which was already dissolved by the divorce. It added that while Filipinos under Art. 15, CC are covered by the policy of absolute divorce, foreigners are not. This will result in an inequituous situation, hence the need to release the Fil. spouse from marriage bonds where the alien spouse obtains the divorce.
Fam
ily R
elat
ions
:DI
VORC
E –
In M
ixed
Marri
ages
In San Luis v. San Luis (2007), the third wife of the former governor of Laguna petitioned for letters administration of his estate. His children by the first marriage opposed contending that petitioner married their father during the subsistence of his second marriage to a foreigner. Petitioner however submitted a foreign divorce decree obtained by the foreigner against the decedent. The lower court denied the letters administration.
The Court held that petitioner may have a personality to file the petition after she proves authenticated copies of the decree. In any case, she has personality to file the petition as she may have an interest as a limited co-owner, in case of the decedent’s incapacity to marry her.
Fam
ily R
elat
ions
:DI
VORC
E –
In M
ixed
Marri
ages
In Bayot v. CA (2008), Bayot, an American citizen, married a Filipino national and thereafter obtained a divorce in Dominican Republic and court approval of the dissolution of their common properties. Subsequently, she filed a petition for nullity of marriage here in the Philippines with application for support pendente lite. The lower court granted her support pendente lite which the appellate court reversed and declared her without personality to sue.
At the SC, the Court held that the divorce she obtained abroad could be given effect here, adverting to 3 legal premises, which are:
Fam
ily R
elat
ions
:DI
VORC
E –
In M
ixed
Marri
ages
Bayot v. CA (2008), cont. –First, a divorce obtained abroad by an alien married to a Philippine national may be recognized in the Philippines, provided the decree of divorce is valid according to the national law of the foreigner.Second, the reckoning point is not the citizenship of the divorcing parties at birth or at the time of marriage, but their citizenship at the time a valid divorce is obtained abroad. And third, an absolute divorce secured by a Filipino married to another Filipino is contrary to our concept of public policy and morality and shall not be recognized in this jurisdiction.
Fam
ily R
elat
ions
:DI
VORC
E –
In M
ixed
Marri
ages
In Dacasin v. Dacasin (2010), the American husband and the Filipino wife obtained a divorce in an Illinois court which granted the mother sole custody over the child. Subsequently, they entered into an agreement for joint custody of the child who was then below 7 years of age.
Later, the mother refused custody to the father who sued in the Philippines for enforcement of their post-divorce agreement. The lower court refused jurisdiction on the ground that the Illinois court retained jurisdiction. The SC modified, pointing out that the subject of the petition was the post divorce agreement. Nevertheless, the SC held the agreement enforceable being contrary to the FC proviso which grants the mother sole custody of a child but remanded the case since the child was, at the time of the petition, already 15 years of age.
Fam
ily R
elat
ions
:DI
VORC
E –
Annu
lmen
t and
De
clara
tion
of N
ullit
y
In Fujiki v. Marinay (2013), Fujiki married a Filipino but was compelled to leave her in the Philippines after her parents refused to recognize their marriage. Thereafter, the Filipina married a Japanese and lived in Japan. When F learned of the abusive relationship, he helped her obtain a divorce decree in Japan. Thereafter, he filed in RP a petition for recognition of divorce and annotation of the decree in the certificate of 2nd marriage of his wife. The lower court dismissed outright for non-compliance with the Rules on Declaration of Nullity of Marriage, and of his lack of personality to sue, not being a party to the marriage under question.
Fujiki (cont)
On direct appeal to the SC, the SC held that: (a) the Rules on Declaration of Void
and Voidable Marriages do not apply to a petition for recognition of divorce;
(b) the spouse in a first subsisting marriage has capacity to sue either for nullity or recognition of foreign divorce; and
(c) While a marriage cannot be collaterally attacked through cancellation of entries in a civil registry, this rule does not apply for correction of civil entries arising from a divorce obtained by a foreigner abroad, especially where the basis is bigamy.
Fam
ily R
elat
ions
:DI
VORC
E –
Annu
lmen
t and
De
clara
tion
of N
ullit
y
Fam
ily R
elat
ions
:DI
VORC
E –
Annu
lmen
t and
De
clara
tion
of N
ullit
y
In Ablaza v. Republic (2010), the brother of the decedent husband brought an action to nullify his brother’s marriage celebrated in 1949 on the ground of absence of a marriage license. The lower court held him without personality to sue, not being a party to the marriage, as required under the Rule on the Declaration of Nullity of Void Marriages. On appeal, the SC reversed holding that the Rule only applies to proceedings commenced after 15 March 2003, and excludes1. Those commenced before March 15, 2003, the effectivity date of A.M. No. 02-11-10-SC; and2. Those filed vis-à-vis marriages celebrated during the effectivity of the Civil Code and, those celebrated under the regime of the Family Code prior to March 15, 2003.