REVIEWER IN CONFLICT OF LAWS

Cheryl M. Navarro
2007-0026
Arellano University School of Law
DEFINITION OF TERMS
Conflict of Laws
- or Private International Law
- that part of the municipal law of a state which directs its
courts and administrative agencies, when confronted with
a legal problem involving a foreign element, whether or
not they should apply foreign law or foreign laws.
Public International Law
- the body of legal rules which apply between sovereign
states and such other entities as have been granted
international personalities.
DISTINCTIONS BETWEEN CONFLICT OF LAWS AND PUBLIC
INTERNATIONAL LAW
CONFLICT OF LAW
1.) MUNICIPAL
2.) PRIVATE
INDIVIDUALS

BASIS
Nature
Persons Involved

PRIVATE

Transactions

RESORT TO
MUNICIPAL
TRIBUNALS

Remedies/
Sanctions

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LAW OF NATIONS
INTERNATIONAL
SOVEREIGN STATES
& ENTITIES
POSSESSED OF AN
INTERNATIONAL
PERSONALITY
GENERALLY
AFFECTING PUBLIC
INTEREST; THOSE
WHICH IN GENERAL
ARE OF INTEREST
TO SOVEREIGN
STATES
MAY BE FORCIBLE
OR PEACEFUL
Forcible:
1.
severance of
diplomatic
relations,
2.
retorsions,

3.
4.
5.
6.

reprisals,
embargo,
boycott,
nonintercourse,
7.
pacific
blockades,
8.
collective
measures under
the UN Charter,
and
9.
WAR
Peaceful:
1.diplomatic
negotiation,
2.tender & exercise
of good offices,
3.mediation,
4.inquiry and
conciliation,
5.arbitration,
6.judicial settlement
by the ICJ,
7.reference to
regional agencies,
8.reference to the
UN
Theory of Comity
- we apply the foreign law because of its CONVENIENCE,
and finally, because WE WANT TO GIVE PROTECTION to
our citizens, residents and transients in our land.
Theory of Vested Rights
- we SEEK TO ENFORCE not the foreign law itself but THE
RIGHTS THAT HAVE BEEN VESTED under such foreign
laws.
Theory of Local Law
- We apply foreign law not because it is foreign, but
BECAUSE OUR OWN LAWS, by applying similar rules,
REQUIRE US TO DO SO;
- It is as if the foreign law has become PART AND PARCEL
of our own local law.
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Theory of Harmony of Laws

- In many cases we have to apply the foreign laws so that
WHEREVER A CASE IS DECIDED, i.e., irrespective of the
forum, THE SOLUTION SHOULD BE APPROXIMATELY
THE SAME
- thus, identical or similar solutions anywhere and
everywhere. When the goal is realized, there will be a
harmony of laws.
Theory of Justice
- the PURPOSE OF ALL LAWS, including Conflict of Laws,
is the DISPENSING OF JUSTICE;
- if this can be attained in many cases by applying the
proper foreign law, we must do so.
Comity
- the RECOGNITION that one nation allows within its
territory, to the LEGISLATIVE, EXECUTIVE OR JUDICIAL
ACTS OF ANOTHER NATION, having due regard both to
INTERNATIONAL DUTY and CONVENIENCE, and the RIGHTS
OF ITS OWN CITIZENS, or other persons who are under the
protection of its laws.
Characterization/ DOCTRINE OF QUALIFICATION
- the process of determining under what category a certain
set of facts or rules fall
- the process of deciding whether or not the facts relate to
the kind of question specified in a conflicts rule.
- Also called the doctrine of qualification
- The ultimate purpose is to enable the forum to SELECT
THE PROPER LAW.
Status
- the place of an individual in society, and
- consists of personal qualities and relationships, more or
less permanent, with which the state and the community
are concerned.
- Among the things which make up the status of a person
are the ff.: his being married or unmarried, widowed or
divorced, his being a legitimate or an illegitimate child of
his parents, his being a minor or his having reached the
age of majority; his capacity to enter into various
transactions.
Capacity
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merely a part of status, and the sum total of his rights and
obligations.
The Civil Code distinguishes 2 kinds of capacity: CAPACITY
TO ACT and JURIDICAL CAPACITY.
Capacity to act or ACTIVE CAPACITY is the power to do acts
with legal effects
Juridical capacity or PASSIVE CAPACITY is the fitness to be
the subject of legal relations

Personal Law
- The law that attaches to an individual, wherever he may
go- a law that generally governs his status, his capacity, his
family relations, and the consequences of his actuations.
- This may be the NATIONAL LAW of his DOMICILIARY
LAW or the LAW OF THE SITUS depending upon the
theory applied and enforced in the forum.
Nationality Theory
- the theory by virtue of which the status and capacity of an
individual are generally governed by the law of his
nationality.
Naturalization
- a judicial process of acquiring citizenship where formalities
of the law have to be complied with, including a JUDICIAL
HEARING and APPROVAL OF THE PETITION
- it may also mean the acquisition of another citizenship by
such acts as marriage to a citizen, and the exercise of the
option to elect a particular citizenship.
Domiciliary Theory
- the theory that in general, the status, condition, rights and
obligations, and capacity (SCROC) of a person should be
governed by the law of his domicile.
Situs or Eclectic Theory
- in general, the capacity, legal condition, or status (C.LC.S)
of an individual should be governed by the law of the place
where an important element of the problem occurs or
situated.
- If the participation of the individual concerned is active as
when he does the act voluntarily, the governing law is the
law of the actual situs of the place of the transaction or
event.
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If the participation is passive, as when the effects of the

act are set forth in the law, the governing law is the law of
the legal situs or the legal situs of an individual is
supposed to be his domicile.

RENVOI
- literally means REFERRING BACK;
- the problem arises when there is doubt as to whether a
reference to a foreign law is a reference to the internal law
of said foreign law, or is a reference to the whole of the
foreign law, including its conflicts rules.
- renvoi (from the French, meaning "send back" or "to return
unopened") is a subset of the choice of law rules and it
may be applied whenever a forum court is directed to
consider the law of another state.
DOUBLE RENVOI
- occurs when the local court, in adopting the foreign court
theory, discovers that the foreign court accepts the renvoi
- Double Renvoi or the Foreign Courts Doctrine which will
also ensure parity of result so long as no other relevant
law is using it. In this scenario, the forum court considers
that it is sitting as the foreign court and will decide the
matter as the foreign court would.
Transmission
- the process of applying the law of a foreign state through
the law of a second foreign state.
Marriage as a contract
- ARTICLE 1 FAMILY CODE:
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 stipulations except that marriage
settlements may fix the property relations during the
marriage within the limits provided by the Family Code.
- marriage as any other contract has two kinds of requisites:
the formal and the essential requisites.
Marriage as a Status
- carries with it implications in two fields:
1. the realm of personal rights and obligations of the
spouses; and
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2. the realm of property relations.

Annulment
- the remedy to a voidable marriage, i.e., a valid marriage
until annulled.
Absolute Divorce
- a mode of dissolving the marital ties granted for causes
subsequent to the marriage ceremony. There is no Divorce
in the Philippines.
Legal Separation
- or divorce a mensa et thoro
- or separation from bed and board
- or relative divorce
- does not sever the marriage bonds
- Reconciliation prevents a suit for legal separation or
rescinds one already granted.
- Can be granted for causes subsequent to the celebration
of the marriage
- The grounds are those given by the national law of the
parties concerned inasmuch as this is purely a question of
status, the validity of the marriage being presumed or
admitted.
Some Grounds for Legal Separation:
Grounds for legal separation
National law of the parties
a) Adultery
a) if of the same or common
nationality- the common
national law governs
b) Concubinage
b) if of different nationalitiesthe grounds given by BOTH
national laws should all be
considered proper grounds
c) attempt by one spouse
NOTE: Residence requirement
against the life of the other
if suit is brought in the
Philippines:
a) if cause occurred in the
Philippines- NO RESIDENCE
REQUIREMENT
b) if cause occurred outside
the Philippines- ONE YEAR
RESIDENCE is required in
our country
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LEGAL SEPARATION DISTINGUISHED FROM ANNULMENT OF

MARRIAGE
LEGAL SEPARATION
Can be granted from causes
arising after the celebration of
marriage
Grounds are given by the
national parties concerned
Presumes the validity of
marriage

ANNULMENT
Can be granted for causes
existing prior to or at the time
the wedding takes place
Grounds are given by the lex
loci celebrationis
Questions the very existence of
the status

GROUNDS FOR LEGAL SEPARATION:

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
or more than 6 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 RP or abroad
8. sexual infidelity (adultery or concubinage) or perversion
9. attempt by the respondent against the life of the
petitioner
10.
abandonment of petitioner by respondent w/o
justifiable cause for more than one year.
Notes:
Mere preponderance of evidence will suffice to prove the
existence of any of the grounds, although in no.4, previous
criminal conviction is essential in view of the necessity of
a final judgment.
Abandonment as used herein is synonymous to criminal
desertion, i.e., a husbands or wifes abandonment or
willful failure without just cause to provide for the care,
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protection or support of the spouse who is in ill health or

necessitous circumstances. This includes both the
INTENTION to ABANDON and the EXTERNAL ACT by which
the intention is carried into effect.
Paternity (or maternity)
- the civil status of the father (or mother) with respect to
the child begotten by him (or her).
Filiation
- the status of the child in relation to the father or mother.
Parental Affection
- the love of the parents for the child
Filial Affection
- the love of the child for the parents
Legitimation
- a remedy or process by means of which those who in fact
were not born in wedlock, and should therefore be
ordinarily considered illegitimate children, are, by fiction
and upon compliance with certain requirements, regarded
by the law as legitimate, it being supposed that they were
born when their parents were already validly married.
- The requisites for legitimation are those prescribed
by the national law of the father.
The following constitute the internal requisites for the
legitimation of an illegitimate child:
1) The child must be conceived and born outside wedlock of
parents who at the time of the conception were
disqualified by any impediment to marry each other.
2) There must be subsequent valid marriage
When we mention the relationship between the child and the
parents, we inferentially include also the following matters:
a)
b)
c)
d)

presumptions of legitimacy and illegitimacy

rights and obligations of parents and children
parental authority
reciprocal support

Adoption
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the process of making a child, whether related or not to

the adopter, possess in general the rights accorded to a
legitimate child.

CONFLICTS RULES ON ADOPTION

1) Whether or not the status of adoption has been created
depends on the national law of the adopter.
2) If the adoption takes place in the Philippines, our countrys
procedural requisites must be complied with in accordance
with the theory of lex fori in procedural matter.
3) Adoption cannot be allowed without judicial approval.
4) The following are not allowed to adopt:
-

The GUARDIAN WITH RESPECT TO THE WARD prior to the

approval of the final accounts rendered upon the
termination of their guardianship relation;
Any person who has been CONVICTED OF A CRIME
INVOLVING MORAL TURPITUDE;
An ALIEN except:

a) a former Filipino citizen who seeks to adopt a relative

by consanguinity
b) one who seeks to adopt the legitimate child of his/her
Filipino spouse; or
c) one who is married to a Filipino citizen and seeks to
adopt jointly with his/her spouse a relative by
consanguinity of the latter.
Note:
An alien with whose government of the RP has no diplomatic
relations may not be adopted.
Adoption of a foreigner does not grant said foreigner
Philippine citizenship.
Doctrine of Immutability of Status
- theory that the STATUS OF A CHILD- HIS LEGITIMACYIS NOT AFFECTED BY ANY SUBSEQUENT CHANGE IN
THE NATIONALITY OF THE PARENTS.
- However, the national law of the parents will be changed
should the parents effect a change of nationality: the
rights and obligations of parents and child will now be
determined by the new national law.
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Example: A Filipino illegitimate child who becomes a legitimated

child of his Filipino parents by virtue of recognition by both
parents and their subsequent valid marriage, continues to be a
legitimate child even if the parents should subsequently
embrace another nationality.
The parental and filial rights and obligations will now be
governed the NEW nationality, but the child is considered still a
legitimated child, despite any contrary rule under the new
nationality. Moreover, the new rights and obligations will be
effective only from the moment the new nationality is
embraced, not before.
Guardianship
- there are generally 3* kinds of guardians
1. Guardians over the Person*- appointed generally
by the courts where the ward is domiciled. Their
powers are coextensive with the authority of the
appointing court. Hence, a guardian as such, is not
permitted to sue in other jurisdictions unless his
guardianship is also recognized in such foreign
courts. However, he may litigate in his own
individual or private capacity.
2. Guardians over the Property* - appointed by the
court where the property of the ward may be found;
their powers are fixed by the appointing court, and
cannot have extraterritorial application.
Should the ward have properties in foreign states,
ancillary guardianship proceedings are
imperative.
3. General Guardians* (over both the person and the
property of the wards). Can generally be appointed
only by the court of the country where the ward is
domiciled and where the properties are located.
Powers are coextensive with those of the court that
designated them.
4. Domiciliary Guardians (appointed by the courts of
the domicile of the wards)
5. Ancillary Guardians (those appointed elsewhere)
Real Property
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part of the country where it is located.

Its immovability makes it logical that it shall be subject to
the laws of the states where it is found (lex situs/lex rei
sitae)

Personal Property
- movable property
- governed by the law of the owner (MOBILIA SEQUUNTUR
PERSONAM)
- may be tangible or intangible
- TANGIBLES- Choses in possession
- INTANGIBLES- Choses in action (such as shares of stock,
franchises, and copyrights)
REAL AND PERSONAL PROPERTIES
FACTUAL SITUATION
1) Real property
- extrinsic and intrinsic
validity of
alienations,
transfers,
mortgages,
capacity of parties,
interpretation of
documents,
effects of
ownership,
co-ownership,
accession,

POINT OF CONTACT
Lex rei sitae (Art. 16, NCC)

usufruct,
lease,
easement,
police power,
eminent domain,
taxation,
quieting of title,
registration and
prescription

Exceptions:
a) successional rights
b) capacity to succeed
c) contracts involving real
property but which do not
deal with the title thereto
d) contracts where the real
property is given as
security

national law of the

decedent
- national law of the decedent
- lex loci voluntatis/ lex loci
intentionis
- the principal contract (usu.
Loan) is governed by the
proper law of the contract
(lex loci voluntatis/ lex loci
intentionis
note: the mortgage itself,
however, is governed by the
lex rei sitae. There is a
possibility that the principal

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2) Tangible Personal Property

a) in general

contract is valid but the

mortgage is void; or it may be
the other way around. If the
principal contract is void, the
mortgage would also be void
(for lack of proper cause or
consideration0, although by
itself, the mortgage could have
been valid.

EXCEPTIONS: SAME AS THOSE

FOR REAL PROPERTY
n) LEX REI SITAE

b) means of transportation
-

vessels

other means

c) thing in transitu (these

things have a changing
status because they
move)
- loss, destruction,
deterioration
- validity and effect of the
seizure of the goods
-

disposition of alienation
of the goods

Exceptions: same as those for

real property except that in
example concerning the
mortgage the same must be
changed to a pledge of
personal property.

law of the flag (or in

some cases of the place
of registry)

law of the depot or

resting place

law of the destination

locus regit actum (where

seized) bec. Said place is
their temporary situs
lex loci voluntatis/lex loci
intentionis

3) Intangible personal property

a) recovery of debts or
involuntary
assignment of debts
(garnishment)
b) voluntary
assignment of debts

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a) where the debtor may be

effectively served with
summons (usu. The

domicile)
b) lex loci voluntatis/ lex loci
intentionis (proper law of
the contract)

c) taxation of debts
d) administration of
debts

e) negotiability or nonnegotiability of an
instrument
f) validity of transfer,
delivery or
negotiation of the
instrument
g) effect on a
corporation of the
sale corporate
shares
h) effect between the
parties of the sale
of corporate shares
i) taxation on the
dividends of
corporate shares
j) taxation on the
income of the sale
corporate shares
k) franchises
l) goodwill of a
business and
taxation thereon
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other theories:
1) NATIONAL LAW OF THE
CREDITOR OR DEBTOR
2) DOMICILE OF THE
DEBTOR OR THE
CREDITOR
3) LEX LOCI CELEBRATIONIS
4) LEX LOCI SOLUTIONIS
c) domicile of the creditor
d) lex situs of assets of the
debtor (for these assets
can be held liable for the
payment of the debts)
e) the right embodied in the
instrument
f) in general, situs of the
instrument at the time of
transfer, delivery or
negotiation
g) law of the place of
incorporation
h) lex loci voluntatis/lex loci
intentionis
i) law of the place of
incorporation
j) law of the place where
the sale was
consummated
k) law of the place that
granted them

m)patents, copyrights,
trademarks, trade
names

l) law of the place where

the business is carried on
m)in the absence of a
treaty, they are protected
only by the state that
granted them.
Note: foreigners may sue for
infringement of trademarks
and tradenames in the RP only
if Filipinos are granted
reciprocal concessions in the
state of the foreigners.

Chose
- a thing, an article of personal property
- a chattel personal, and is either IN ACTION OR IN
POSSESSION
Chose in Action (Intangible Personal Property)
- a thing in action
- the right of bringing an action or
- right to recover a debt or money
Chose in action means any of the following:
1) Right of proceeding in a court of law to procure payment
of sum of money, or right to recover a personal chattel or
a sum of money by action;
2) A personal right not reduced into possession, but
recoverable by a suit at law;
3) A right to personal things of which the owner has the
possession, but merely a right of action for their
possession;
4) Includes personal chattels which are not in
possession, and all property in action which depends
entirely on contracts express or implied;
5) A right to receive or recover a debt, demand, or
damages on a cause of action ex-contractu or for a
tort or omission of a duty.
Chose in Possession (Tangible Personal Property)
- Personal thing of which one has possession
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Goodwill
- the PATRONAGE of any established trade or business
- the BENEFIT acquired by an establishment BEYOND the
mere value of the capital stocks, funds, or property
employed therein IN CONSEQUENCE OF THE GENERAL
PUBLICS PATRONAGE AND ENCOURAGEMENT which
it receives from its customers.
Trademark
- the name or symbol of goods made or manufactured.
Trade name
- the name or symbol of a store or business place
Service Mark
- the name or symbol of services rendered.
Copyright
- the right of literary property as recognized and sanctioned
by positive law.
Will
- an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death.
Succession
- a mode of acquisition by virtue of which the property,
rights and obligations, to the extent of the value of the
inheritance, of a person are transmitted through his death
to another or others either by his will or by operation of
law.
Theories on the Proper Law for the Transmission of Successional
Rights
1) Unitary or Single System- one law governs the
transmission of both real and personal property
2) Split or Scission System- one law governs real property
while another determines successional rights to personal
property.
WILLS, SUCCESSION, AND ADMINISTRATION
FACTUAL SITUATION
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POINT OF CONTACT

1) Extrinsic Validity of Wills

a) made by an alien abroad
b) made by a Filipino abroad
c) made by an alien in the
RP
2) Extrinsic validity of JOINT
WILLS (made in the same
instrument)
a) made by Filipinos
abroad
b) made by aliens
abroad

c) made by aliens in
the Philippines
3) Intrinsic Validity of wills
(including order of
succession, amount of
successional rights, and
intrinsic validity of the
provisions of the will)
4) Capacity to succeed
5) Revocation of wills
a) if done in RP
b)if done outside RP
- by a non-domiciliary
-

by a domiciliary

6) probate of wills made

abroad
a) if not yet probated
b) if already probated
abroad

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a) lex nationalii/ lex

domicilii/ RP law/ lex
loci celebrationis
b) lex nationalii/ lex
loci celebrationis
c) lex nationalii/ lex
loci celebrationis

a) lex nationalii (void

even if valid where
made)
b) valid if accdg. Lex
nationalii/ lex
domicilii/ lex loci
celebrationis
c) lex loci celebrationis
therefore VOID
Lex nationalii of the deceasedregardless of the location and
nature of the property

Lex nationalii of the deceased

a) lex loci actus (of the
revocation)
b)
- lex loci celebrationis
of the WILL/ lex loci
domicilii
- lex domicilii/ lex loci
actus of REVOCATION
a) lex fori
b) lex fori (must also
be probated in the
RP; but enforcement
of the foreign
judgment on

probate is enough)
7) Executors and
administrators
a) where appointed

a) if domiciled- where
domiciled at death

b) powers

if not domiciled- where

the assets are found
b) co-extensive with
the qualifying or the
appointing court
note: these rules also apply to
principal, domiciliary or
ancilliary administrators and
receivers even in nonsuccession cases.

Holographic Wills
- a will which is entirely written, dated and signed by the
hand of the testator himself.
- Subject to no other form and need not be witnessed.
- The disposition of the testator written below his signature
must be dated and signed by him in order to make them
valid as testamentary dispositions.
Decedent and Testator
- decedent is the general term applied to the person whose
property is transmitted through succession, whether or not
he left a will, if he left a will, he is also called a testator.
Testamentary Capacity
- the capacity to comprehend the nature of transaction in
which the testator is engaged at the time,
- to recollect the property to be disposed of and the persons
who would naturally be supposed to have claims upon the
testator, and
- to comprehend the manner in which the instrument will
distribute his property among the objects of his bounty.
Attestation Clause
- the clause wherein the witnesses certify that the
instrument has been executed before them, and the
manner of the execution of the same.
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Estate
- the interest which a person has in lands, or any other
subject of property
Obligation
- a juridical necessity to, to do or not to do.
- A juridical relation whereby a person (creditor) may
demand from another (debtor) the observance of a
determined conduct and in case of breach, may demand
satisfaction from the assets of the latter.
Contract
- a meeting of the minds between 2 persons whereby one
binds himself, with respect to the other, to give something
or to render some service.
- An agreement which creates an obligation
- Agreement upon sufficient consideration, to do or not to
do a particular thing.
- May be express or implied.
Express Contract
- the agreement is formal and stated verbally or in writing
- the terms of the agreement are declared by the parties in
writing or verbally at the time it is entered into
Implied Contract
- the agreement in fact is presumed or inferred from the
acts of the parties
- may also arise from mere consent
- where one party rendered services to another, and these
services were accepted by the latter, in the absence of
proof that the services were rendered gratuitously, an
obligation results to pay the reasonable worth of the
services rendered upon the implied contract of hiring,
under the principle of facio ut des, i.e., I do that you may
give.
Tort
- a legal wrong committed upon anothers person or
property, independent of a contract
Crime
- an act or omission punishable by law
Felony
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transgression against the Revised Penal Code

Offense
- transgression against a special law
Infraction
- transgression against a local or municipal or local
ordinance
Corporation
- 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.
Natural Moral Law
- rule of human conduct implanted by God in our nature
and in our conscience, urging us to do whatever is right
and avoid whatever is evil.
Special Laws
- regulate, for instance, the treatment of foreign insurance
companies, the reciprocal privileges in the matters of
patents, the requisites before an alien may obtain a
copyright, the conditions under which alien retail trade
may still continue, and the grant of incentives to foreign
investors.
LEX SITUS
- law of the place where the property is situated
- governs almost everything that concerns real property:
formalities for their alienation, the capacity to encumber
or otherwise dispose of them, and so forth.
- In the Philippines, this rule applies to both real and
personal property.
LEX LOCI CELEBRATIONIS
- law of the place of the celebration or execution
- governs generally all transactions insofar as
FORMALITIES OR SOLEMNITIES are concerned.
- One important exception to this rule is whenever
property is involved, in which a case it is the lex
situs that should control.
Criminal Law Principle of Territoriality
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the place or territory where a crime has been committed

has jurisdiction to try the offense that has been
committed.

Criminal Law Principle of Generality

- criminal laws of a country bind both the citizens and the
aliens who are in the said country or territory.
- Penal laws and those of public security and safety shall
be obligatory upon all who live or sojourn in Philippine
territory, subject to the principles of public international
law and to treaty stipulations.
- Aliens come under our territorial jurisdiction because while
they are in our country, they owe some sort of allegiance,
even if it be temporary.
JURISDICTION
- from the Latin jus dicere, i.e., the right to speak.
- The authority of a tribunal to hear and decide a case and
also the power to enforce any judgment it may render
thereon in foreign states, subject to the rights of said
states.
JURISDICTION OVER THE SUBJECT MATTER
- Conferred by law; the consent or the submission of the
parties on this point is of no consequence; only the law
confers it and only the law may change it.
- the authority of a court to hear and decide cases of the
general class to which the proceedings in question belong
- the allegations in the petition or complaint, read together
with the proper jurisdictional law, will confer jurisdiction on
the court
JURISDICTION OVER THE PERSON
- the power of the court to render a judgment that will be
binding on the parties involved: the plaintiff and the
defendant
- jurisdiction over the person of the plaintiff is acquired from
the moment he institutes the action by the proper
pleading
- jurisdiction over the person of the defendant is acquired
through the following means:
1. voluntary appearance
2. personal substituted service of summons
JURISDICTION OVER THE RES
20 | P a g e

jurisdiction over the particular subject matter in

controversy, REGARDLESS of persons who may be
interested therein.

FORUM-SHOPPING
- the practice of looking over the courts of the world for
possible advantages ought to be curbed
PUBLIC POLICY
- the manifest will of the state
- that which it desires on account of its own fundamental
principles of justice, its own perception of morals, and its
deep-rooted traditions for the common weal.
COMITY BASED ON RECIPROCITY
- if the laws and judgments of the forum are recognized in a
foreign state, the forum in turn will recognize the laws and
judgments emanating from said foreign state.
RECOGNITION OF A FOREIGN JUDGMENT
- our courts will allow said FOREIGN JUDGMENT TO BE
PRESENTED AS A DEFENSE TO A LOCAL LITIGATION
- involves merely the sense of justice
- does not require either action or a special proceeding
- may exist without enforcement
ENFORCEMENT OF FOREIGN JUDGMENTS
- a plaintiff wants the courts to POSITIVELY CARRY OUT
AND MAKE EFFECTIVE IN THE PHILIPPINES A
FOREIGN JUDGMENT
- virtually implies a direct act of sovereignty
- necessitates a separate action or proceeding brought
precisely to make the foreign judgment effective
- necessarily carries with it recognition
Extrinsic Fraud
- fraud based on facts not controverted or resolved in the
case where the judgment was rendered.
Intrinsic Fraud
- fraud which goes to the very existence of the cause of
action.
PURELY INTERNAL RULE
- Governs a purely domestic problem, one without any
foreign element
21 | P a g e

Directly answers a given problem

CONFLICTS RULE
- applies when the factual situation involves a foreign
element
- merely indirectly responds by indicating whether internal
or foreign law is to be applied.
FACTUAL SITUATION
- set of facts presenting a conflicts problem
- defines its object certain operatives facts
- raises a legal question
POINT OF CONTACT OR THE CONNECTING FACTOR
- the law of the country with which the factual situation is
most intimately connected.
CAPACITY TO SUCCEED
- The factual situation indicating that a person is dead, and
someone alleges a right or capacity to inherit from the
former.
TOTALITY APPROACH
- getting the law intended by the parties to govern the
contract then applying the intended law in its totality
including its periods of prescription and its statute of
frauds.
LEX FORI THEORY
- the forum considers its own concepts its own
characterization, otherwise there will be a virtual
surrender of sovereignty right in the forums own home.
LEX CAUSAE THEORY
- the exact opposite of the lex situs theory
- the law identified in the choice-of-law stage of the conflict
process as the one to be applied to determine the case
- the characterization of the foreign state, which is the
principal point of contact, is supposed to be followed.
UNIVERSAL ANALYTICAL THEORY/ COMPARATIVE APPROACH
THEORY
- common factors both in the LEX FORI and the LEX
CAUSAE are taken into consideration in order to avoid
unjust results
22 | P a g e

Characterization comes only after a general

comparative analytical study of the jurisprudence of
all the states involved.

DUAL THEORY OF LEX FORI AND LEX CAUSAE

- Similar to the Comparative Approach Theory, except that
instead of considering worldwide conceptions, ONLY TWO
CONCEPTS ENTER INTO THE PICTURE: THE
CHARACTERIZATION OF THE LEX FORI AND THAT OF
THE LEX CAUSAE.
AUTONOMOUS THEORY (may be related to TRANSMISSION)
- The forum should consider the characterization of the
country referred to in the conflicts rule of the lex causae
- Hence, if the characterization in the forum State A points
to State B as the lex causae, and the conflicts rule in State
B refers to State C as the proper point of contact, it is the
characterization in State C which must be used by State A.
NATURAL-BORN CITIZENS
- those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their
Philippine citizenship.
NATURALIZED CITIZENS
- citizens who are not natural-born citizens and those who
become citizens through judicial proceedings
CITIZENS BY ELECTION
- Citizens who, by virtue of certain legal provisions, become
such by choosing or electing Philippine citizenship at the
age of 21 or within a reasonable time hereafter.
EFFECTIVE NATIONALITY THEORY
- if the deceased is not a citizen of the forum, we must get
the law of the nation of which he was both a national and
a domiciliary
DOMICILE
- the place where a person has certain settled, fixed, legal
relations because it is assigned to him by the law at the
moment of birth (DOMICILE OF ORIGIN)
- the place assigned to him by law after birth on account of
a legal disability caused for instance by minority, insanity,
or marriage in the case of a woman or because he has
23 | P a g e

home there (CONSTRUCTIVE DOMICILE/DOMICILE BY

OPERATION OF LAW)
that to which, whenever he is absent, he intends to return
(DOMICILE OF CHOICE)

DOMICILE OF ORIGIN (DOMICILIUM ORIGINS)

- acquired at birth
- applies only to infants
- never changes for a person is born only once.
CONSTRUCTIVE DOMICILE (DOMICILIUM NECESSARIUM)
- given after birth
- all those who lack capacity to choose their own domicile
(infants, married women, idiots and insane)
- Legal disabilities prevent their making a choice
- May change from time to time, depending upon
circumstances
DOMICILE OF CHOICE
- a result of the voluntary will and action of the person
concerned
PRINCIPLE OF ONLY ONE DOMICILE
- No natural person can have more than one domicile at a
time while a person may have more than one residence,
the Civil Code recognizes only one domicile: the place of
habitual residence.
RESIDENCE
- a more or less temporary place of abode which may be
located in several places
FOREIGN COURT THEORY
- International PINGPONG/ International Football/ Revolving
Doors/ inextricable circle
- The RP court, in deciding the case, will put itself in the
position of the foreign court and whatever the foreign
court will do respecting the case, the RP court will likewise
do.
THEORY OF DESISTMENT
- the RP court desists or refrains from applying a foreign
law because of its inadequacy being founded on a
different basis. Hence, the RP court applies its internal law.
Ordinary Children
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with an intra-uterine life of at least 7 months.

Mere birth is sufficient

Extraordinary Children
- if the intra-uterine life be less than 7 months
- the child must have lived for at least 24 hrs. after its
complete delivery from the maternal womb
NCC 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.
NCC Article 41. For civil purposes, the fetus is considered born if
its is alive at the time it is completely delivered from the
mothers womb. However, if the fetus had an intra-uterine life of
less than 7 months, it is not deemed born if it dies within 24 hrs.
after its complete delivery from the maternal womb.
Presumptive Personality
- Personality does not begin at birth, it begins at conception.
It is essential that birth should occur later, otherwise the
fetus will be considered as never having possessed legal
personality.
Emancipation
- takes place by the attainment of majority. Unless
otherwise provided, majority commences at the age of 18
yrs.
Absence
- the legal status of a person who disappears from his
domicile, his whereabouts being unknown
- Article 384 of the Civil Code:
2 years having elapsed without any news about the
absentee or since the receipt of the last news, and 5 years in
case the absentee has left a person in charge of the
administration of his property, his ABSENCE may be
declared.
-

Article 386 of the Civil Code:

The judicial declaration of absence shall not take effect

until six months after its publication in a newspaper of
general circulation.
25 | P a g e

PRESUMPTION OF DEATH
Article 390. [ORDINARY ABSENCE] After the absence of 7
years, it being unknown whether or not the absentee still lives,
he shall be presumed dead for all purposes, except those of
succession.
The absentee shall not be presumed DEAD for the purpose of
opening his succession till after an absence of 10 years.
If he disappeared after the age of 75 years, an absence of 5
years shall be sufficient in order that his succession may be
opened.
In ordinary absence- death is presumed to have occurred on the
last day of the period
In extraordinary / qualified absence- death is presumed to have
occurred at the beginning of the period.
SURVIVORSHIP
The rules on survivorship are found in Article 43 of the Civil
Code and in Rule 131 of the Rules of Court:
Article 43 CC. If there is doubt, as between 2 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.
Rule 131, Sec. 3 (jj) Rules of Court:
When 2 or more persons perish in the same calamity, such as
wreck, battle, or conflagration, and it is not shown who died
first, and there are no particular circumstances from which it
can be inferred, the survivorship is presumed from the
probabilities resulting from the STRENGTH AND AGE OF THE
SEXES, according to the following rules:
1. if both were under the age of 15, the older is presumed to
have survived;
26 | P a g e

2. if both were above the age of 60, the younger is presumed

to have survived;
3. if one is under 15 and the other above 60, the former is
presumed to have survived;
4. if both be over 15 and under 60, and the sexes be
different, the male is presumed to have survived; if the
sexes be the same, then the older;
5. if one be under 15 or over 60, and the other between
those ages, the latter is presumed to have survived.
MARRIAGE AS A CONTRACT
FACTUAL SITUATION
1. ) if celebrated abroad
* between Filipinos

* between foreigners

* mixed

POINT OF CONTACT
1.)
LEX LOCI CELEBRATIONIS
(without prejudice to the
exceptions under bigamous,
polygamous, and incestuous
marriages and consular
marriages
LEX LOCI CELEBRATIONIS
except if the marriage is:
a) Highly immoral (like
bigamous and
polygamous
marriages)
b) Universally
considered
incestuous, ie., bet.
Brothers and sisters
and bet. Ascendants
and descendants.
LEX LOCI CELEBRATIONIS
except if the marriage is:
c) Highly immoral (like
bigamous and
polygamous
marriages)
d) Universally
considered
incestuous, ie., bet.
Brothers and sisters

27 | P a g e

and bet. Ascendants

and descendants.
- TO UPHOLD THE VALIDITY OF
THE MARRIAGE.
If celebrated in the Philippines
between foreigners

mixed

Marriage by proxy (celebrated

where the proxy appears)

NATIONAL LAW provided the

marriage is not highly immoral
or universally considered
incestuous
NATIONAL LAW of the Filipino
(otherwise public policy may
be militated against)
LEX LOCI CELEBRATIONIS (with
prejudice to the foregoing
rules)

MARRIAGE AS A STATUS
FACTUAL SITUATION
1) Personal Rights and
Obligations between the
Husband and the Wife

2) Property Relations between

the Husband and the Wife

POINT OF CONTACT
NATIONAL LAW OF THE
HUSBAND
Note: Effect of subsequent
change of nationality
a) if both will have a new
common nationality, THE
NEW ONE;
b) if only one will change,
THE LAST COMMON
NATIONALITY
c) if there was never any
common nationality, THE
NATIONAL LAW OF THE
HUSBAND AT THE TIME
OF THE WEDDING
NATIONAL LAW OF THE
HUSBAND, w/o prejudice to Art.
80 of the FC, to wit:
In the absence of a contrary
stipulation in a marriage
settlement, the property

28 | P a g e

relations of the spouses shall

be governed by RP laws,
regardless of the place of the
celebration of the marriage
and their residence.
This rule shall not apply:
1) Where both spouses are
aliens;
2) With respect to the
extrinsic validity of
contracts affecting
property not situated in
the RP and executed in
the country where the
property is located.
3) With respect to the
extrinsic validity of
contracts entered into in
the RP but affecting
property situated in a
foreign country whose
laws require different
formalities for its extrinsic
validity.
Effect of Change of NationalityNo EFFECT accdg. To the
Doctrine of immutability in the
matrimonial property regime.

Article 391. The following shall be presumed dead for all

purposes, including the division of the estate among the heirs:
1. A person on board a vessel lost during a sea voyage, or
on an airplane which is missing, who has not been heard
for 4 years since the loss of the vessel or airplane;
2. a person in the armed forces who has taken part in war,
and has been missing for 4 years.

29 | P a g e

3. a person who has been in danger of death under other

circumstances and his existence has not been
known, for 4 years.
Juridical Jurisdiction
- authority to hear and determine a legal controversy.
- The jurisdiction of our tribunals of justice is governed by
our own law on the matter.
Legislative Jurisdiction
- the authority to enact laws
- the competence of a persons national law to govern his
status
Compulsory Rule
- it is IMPERATIVE for the parties to follow the formalities
of the PLACE OF CELEBRATION
Optional Rule
- the parties may follow EITHER THE LEX LOCI
CELEBRATIONIS OR THEIR NATIONAL LAW
Ecclesiastical Rule
- the formalities of BOTH THE LEX LOCI CELEBRATIONIS
AND THE NATIONAL LAW of the parties must be
complied with
Common-Law Marriage
- the living-in together or the celebration of a man and a
woman as husband and wife without getting married
Marriage by Proxy
- One where one of the parties is merely represented at the
ceremony by a friend or delegate
Absolute Community Regime
- Almost all the properties of the marriage are owned in
common by the husband and the wife
Relative Community Regime/Community Partnership of Gains or
the Ganancial System
- everything earned during the marriage belong to the
conjugal partnership
Complete Separation of Property Regimes
- each owns his/her earnings
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Dotal or Dowry System

- the wife, before the marriage, delivers a dowry or property
to the husband to help out in the marriage obligations, but
later, when the marriage is dissolved, the property of its
value must be returned.
Complete Absorption or Administration by the husband
- the husband owns all the properties of the marriage, but
he is liable for all the debts
Marital Administration System
- each spouse still owns his/her property, but the husband
administers all the properties.
Immutability of Matrimonial Property Regime Doctrine
- REGARDLESS OF CHANGE OF NATIONALITY on the
part of the husband or the wife or both, THE ORIGINAL
PROPERTY REGIME AT THE START OF THE MARRIAGE
REMAINS.
Mutability of Law
- when the law of the original nationality itself changes, the
marital regime, the property relationship, has to change
accordingly.
- This cannot be helped for law is essentially a dynamic
thing;
- However, vested rights must be duly protected.
Socially grotesque situation
- a situation where a Filipino woman is still married to a man
who is no longer her husband
Abandonment
- Synonymous to CRIMINAL DESERTION
- A husbands or wifes willful failure without just cause
to provide for the care, protection or support of a spouse
who is still in ill health or necessitous circumstances
- Includes both the intention to abandon and the external
act by which the intention is carried into effect.
BIGAMY
- committed by any person who shall contract a second or
subsequent marriage before the former marriage has been
legally dissolved, or
31 | P a g e

who shall contract a second or subsequent marriage

before the absent spouse has been declared
presumptively dead by means of a judgment rendered in
the proper proceedings.

Sexual Infidelity
- Unfaithfulness in marriage
- Adultery and concubinage are encompassed in the term
Sexual perversion
- an abnormality by a person in matters of sex
Pre-marital Sex
- indulging by an unmarried couple in sexual intercourse
prior to getting married.
Adultery
- voluntary sexual intercourse of a married person other
than the offenders husband or wife
- committed by a married woman who shall have sexual
intercourse with a man not her husband; and by a man
who has carnal knowledge of her, knowing her to be
married, even if the marriage be subsequently declared
void.
OPEN AND NOTORIOUS ADULTERY
- The parties must reside together publicly in the face of
society as if conjugal relations existed between them, and
their so living and the fact that they are not husband and
wife must be known in the community
Concubinage
- committed by any husband who (1)shall keep a mistress in
the conjugal dwelling or (2)have sexual intercourse under
scandalous circumstances with a woman not his wife,
(3)cohabit with her in any other place.
ILLICIT COHABITATION
- the living together as man and wife of two persons who
are not lawfully married with the implication that they
habitually practice fornication (unlawful sexual intercourse
between two unmarried persons).
ATTEMPT BY ONE SPOUSE AGAINST THE LIFE OF THE OTHER
- the attempt must not be justified as in the case of lawful
self-defense; nor must it be one where the attempt was
32 | P a g e

made because the other was caught in flagrante delicto

with a lover. The attempt must be one of attempted or
frustrated parricide, not one caused by negligence for in
the latter case, it cannot be said that there was an
attempt.
Note:
Art. 59. FC: 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.
Defenses in Legal Separation:
a) Condonation- forgiveness, express or implied. Must be
free, voluntary, and not induced by duress or fraud
b) Consent- may be express or implied. Must be unclouded
by fraud, duress, or sometimes even mistake
c) Connivance
d) Recrimination or mutual guilt- a charge made by an
accused person against the accuser; in particular, a
countercharge of adultery or concubinage made by one
charged with the same offense in a suit for legal
separation, against the person who has charged him or
her.
e) Collusion- Art. 60 of FC: No decree of legal separation
shall be promulgated upon stipulation of facts or a
confession of judgment. This is an agreement whereby one
party will pretend to have committed the ground relied
upon.
f) Prescription- Art. 57, FC: An action for legal separation
shall be filed within 5 years from the time of the
occurrence of the cause. Need not be alleged.
Note:
Art. 58 FC: An action for legal separation shall in no case be
tried before 6 months shall have elapsed since the filing of the
petition.
The cooling-off period (6 months) is the period of time in
which no action may be taken by either sides.
Purpose: to enable the parties to cool-off.
33 | P a g e

Art. 61 FC: 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.
Note: The spouses, while may be entitled to live separately from
each other after the filing of the petition, are not required to do
so.
Effects of legal separation:
1) Spouses may live separately
2) Marriage bonds not severed
3) The absolute community or the conjugal partnership
shall be dissolved and liquidated
4) 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 Art.
43)
5) The custody of the minor children shall be
awarded to the innocent spouse, subject to Art. 213
of FC
6) The offending spouse shall be disqualified from
inheriting from the innocent spouse by
intestate succession.
7) The provisions in favor of the offending spouse
made in the will of the innocent one shall be
revoked by operation of law. (the provisions of the
will being referred to here are provisions made PRIOR
TO and NOT AFTER the decree of legal separation;
otherwise it cannot be said that the decree revokes
any provision, for the will had not yet been made.)
TWO THINGS THAT MAY BE REVOKED BY THE INNOCENT
SPOUSE:

34 | P a g e

1) Donations made in favor of the offending spouse (must be

brought within 5 years from the time the decree of legal
separation has become final); and
2) Designation of the offending spouse as beneficiary in the
insurance contracts of the innocent spouse.
Condonation
- forgiveness, express or implied
- to constitute valid defense, it must be free, voluntary, and
not induced by duress or fraud.
RECRIMINATION OR MUTUAL GUILT
- a charge made by an accused person against the accuser
- a counter charge of an adultery or concubinage made by
one charged with the same offense in a suit for legal
separation, against the person who has charged him or
her.
COLLUSION
- an agreement whereby one party will pretend to have
committed the ground relied upon.
RECONCILIATION
- a bilateral act, requiring common consent, whether
express or implied.
- In law of domestic relations, reconciliation is a voluntary
resumption of marital relations in the fullest sense.
- Shall have the ff. consequences:
a. The legal proceedings, if still pending, shall
thereby be terminated in whatever stage;
b. The final decree of legal separation shall be set
aside, but the separation of property and any
for forfeiture of the share of the guilty spouse
already effected shall subsist, unless the spouses
agree to revive their property regime.
CONSANGUINITY
- kinship
- blood relationship
- the connection or relation of persons descended from the
same stock or common ancestor.
AFFINITY
- connection existing in consequence of a marriage,
between each of the married persons and the kindred of
the other.
35 | P a g e

Lineal Consangunity
- subsists between persons of whom one is descended in a
direct line from the other and so upwards in the direct
ascending line and so downwards in the direct descending
line.
COLLATERAL CONSANGUINITY
- Subsists between persons who have the same ancestors,
but who do not descend or ascend one from the other
DIRECT AFFINITY
- subsists between the husbands and his wifes relations by
blood, or between the wife and the husbands relations by
blood.
SECONDARY AFFINITY
- subsists between the husbands and his wifes relations by
marriage
COLLATERAL AFFINITY
- Subsists between the husband and the relations of his
wifes relations

ENUMERATION
Elements of Private International Law:
1. Conflict of laws is that part of the municipal law of the
State
2. The direction to Courts and Administrative agencies
3. A legal problem involving a foreign element
4. The application or non-application of foreign law/foreign
laws
Importance of Conflict of Laws
1. To adjust conflicting rights in international mercantile and
corporate transactions
36 | P a g e

2. To solve personal, family, property and successional

contractual problems, possessed of facts or elements
operating in two or more states.
Scope of Functions of Conflict of Laws
1. To prescribe the conditions under which the court is
competent to entertain such a suit
2. To determine for each cases the particular territorial
system of law by reference to which the rights of the
parties must be ascertained
3. To specify the circumstances in which a foreign
judgment can be recognized as a decisive of the question
in dispute
In other words,
1. The determination of which country has jurisdiction
2. The applicability to a particular case of either the local or
the foreign law
3. The determination of the force, validity and effectiveness
of a foreign judgment
Why conflict of law is observed?
1. States must of necessity observe the subject because it is
part of their municipal law. Surely, a government,
anywhere and anytime, is duty bound to enforce and
respect its own municipal legislation
2. individuals observe it because of fear of municipal
sanctions
SOURCES OF CONFLICT OF LAWS
1. Indirect
- Natural Moral Law
- Work of Writers
2. Direct
- Constitutions
- Codifications
- Special Laws
- Treaties and Conventions
- Judicial Decisions
- International Customs
Kinds of Jurisdiction
37 | P a g e

1. Jurisdiction over the subject matter

2. Jurisdiction over the person
3. Jurisdiction over the res
Reasons for Refusal to Assume Jurisdiction: Forum Non
Conveniens
1. the evidence and the witnesses may not be readily
available
2. the court dockets of the forum may already be clogged;
to permit additional cases would inevitably hamper the
speedy administration of justice
3. the evils of forum shopping
Application of the Internal or Domestic Law
1. when the law of the forum expressly so provides in its
conflicts rules
2. when the proper foreign law has not been properly
pleaded and proved
3. when the case involves any of the exceptions to the
application of the proper foreign law
Exceptions To The Application Of Foreign Law
1) When the foreign law, judgment or contract is:
- Contrary to almost universally conceded principles
of morality (contra bonos mores)
- Contrary to a sound and established public policy
of the forum
- Involves procedural matters
2) When the case involves:
- Penal laws, contracts and judgments
- Purely fiscal or administrative matters
- Real or personal property situated in the forum
3) When the application of the foreign law, judgment, or
contract:
- May work undeniable injustice to the citizens or
residents of the forum
- May work against the vital interests and national
security of the state of the forum
Proving of a Written Foreign Law
1. By an OFFICIAL PUBLICATION thereof;
38 | P a g e

2. By a COPY ATTESTED BY THE OFFICER HAVING THE LEGAL

CUSTODY OF THE RECORD, or by his deputy, and
accompanied with a CERTIFICATE THAT SUCH OFFICER HAS
CUSTODY
Proving of an Unwritten Law
1. By the ORAL TESTIMONY of expert witnesses
2. By PRINTED AND PUBLISHED BOOKS OF REPORTS OF
DECISIONS of the country involved, if proved to be
commonly admitted in such courts
Theories on Why the Foreign Law may in Some Cases Be Given
Effect
1. Theory of Comity
2. Theory of Vested Rights
3. Theory of Local Law
4. Theory of Harmony of Laws
5. Theory of Justice
Kinds of Comity
1. Based on Reciprocity
2. Based on the persuasiveness of foreign judgment
Reasons why not all foreign judgments can be recognized or
enforced in our country
1. The requisite proof thereof may not be adequate
2. They may contravene our established public policy
3. They may contradict one another: one cannot be
guided by contradictions
4. The administration of justice may be shockingly
corrupt in some countries
Conditions and Requisites Before Foreign Judgments may be
Recognized and Enforced in the Philippines
1. Proof of Foreign Judgment (For recognition, there is no
necessity for a separate action or proceeding
2. the judgment must be on civil or commercial matter
3. No lack of jurisdiction, No want of notice, No
collusion, No fraud, No clear mistake of law or fact
4. The judgment must not contravene a sound and
established public policy of the forum
The Requisites for Res Judicata
1. The judgment must be final
39 | P a g e

2. The court rendering the judgment must have jurisdiction

over the subject matter and the parties
3. The judgment must be on the merits
4. There must be identity of parties, of subject matter, and of
cause of action
Kinds of Conflicts Rule
1. One-Sided Rule/ Unilateral Rule
2. All-sided Rule/ Multilateral Rule
Factors Which Give Rise to the Problem of Characterization
1. Different legal systems attach to the same legal term with
different meanings;
2. Different legal systems may contain ideas or conceptions
completely unknown to one another
3. Different legal systems apply different principles for the
solution of problems which, in general terms, are of
common nature
Steps in Characterization (According to Dean Falconbridge)
1. Characterization of the questions
2. Selection of the proper law
3. Application of the proper law
Steps in Characterization (According to Edgardo Paras)
1. Determination of the facts involved
2. Characterization of the factual situation
3. Determination of the conflicts rule which is to be applied
4. Characterization of the point of contact or the
connecting factor
5. Characterization of the problem as procedural or
substantive
6. pleading and proving of the proper foreign law
7. application of the proper foreign law to the problem
Theories in Characterization (DUAL LT)
1.
2.
3.
4.
5.
6.

LEX FORI
LEX CAUSAE
UNIVERSAL ANALYTICAL
DUAL THEORY OF LEX FORI AND LEX CAUSAE
AUTONOMOUS THEORY
TOTALITY THEORY

Two kinds of capacity:

1. capacity to act
40 | P a g e

2. juridical capacity
Characteristics of Status: (CCUPS)
1. conferred principally by the State
2. a matter of public or social interest
3. a concept of social order
4. cannot be easily terminated at the mere will or desire
of the parties concerned
5. generally supposed to have a universal character
THEORIES ON PERSONAL LAW OR THE LAW THAT SHOULD
GOVERN STATUS AND CAPACITY IN GENERAL
1. Nationality Theory- Personal Theory
2. Domiciliary Theory- Territorial Theory
3. Situs Theory- Eclectic Theory
3 Kinds of Citizens of the Philippines
1. Natural-born
2. Naturalized
3. Citizen by election
2 Theories on Whether Place or Ancestry Determines Citizenship
1. Jus Soli
2. Jus Sanguinis
Citizens of the Philippines Under the 1987 Constitution
1. Those who are citizens of the Philippines at the time of the
adoption of the 1987 Constitution
2. Those whose fathers or mothers are citizens of the
Philippines
3. Those born before 17 January 1973, of Filipino mothers,
who elect Philippine citizenship upon reaching the age of
majority
4. those who are naturalized in accordance with law.
Qualifications for Naturalization
1. AGE. The petitioner must not be less than 21 years old on
the date of the hearing of the petition
2. RESIDENCE. he must have resided in the Philippines for a
continuous period of not less than 10 years.
3. MORAL. He must be of good moral character and
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4. CONSTI. He must believe in the principles underlying the

Philippine Constitution
5. CONDUCT. he must have conducted himself in a proper
and irreproachable manner during the entire period of his
residence in the Philippines in his relation with the
constituted government as well as with the community in
which he is living.
6. PROPERTY. he must have a real estate in the Philippines
worth not less than PHP5,000.00 OR must have some
lucrative trade, profession, or lawful occupation.
7. LANGUAGE. he must be able to speak an write English or
Spanish and any one of the principal Philippine languages
8. MINORS. he must have enrolled his minor children of
school age in any of the public schools/private schools
recognized by the Bureau of Private Schools where RP
history, government, and civics are taught or prescribed as
part of the school curriculum during the entire period of
the residence required of him, prior to the hearing of the
petition.
3 Kinds of Domicile
1. domicile of origin
2. constructive domicile
3. domicile of choice
Proposed Solution to the Renvoi
1. Reject the Renvoi
2. Accept the Renvoi
3. Follow the Theory of Desistment/ mutual disclaimer of
jurisdiction theory, to wit:
THEORY OF DESISTMENT
- the RP court desists or refrains from applying a foreign
law because of its inadequacy being founded on a
different basis. Hence, the RP court applies its internal law.
4. make use of the foreign court theory, to wit:
FOREIGN COURT THEORY
- International PINGPONG/ International Football/ Revolving
Doors/ inextricable circle
- The RP court, in deciding the case, will put itself in the
position of the foreign court and whatever the foreign
42 | P a g e

court will do respecting the case, the RP court will likewise

do.
Emancipation takes place by:
1.
2.
3.
4.

Marriage of the minor

attainment of the age of majority
parental concession
judicial concession

ASPECTS OF MARRIAGE
1. As a contract
2. As a union, a status, a legal relation
Substantial or Essential Requisites of Marriage of Filipinos
1. legal capacity of the contracting parties
2. consent of the contracting parties freely given
3. marriage license, except in marriage of exceptional
cases
4. authority of the person solemnizing the marriage
5. marriage ceremony
Personal Rights and Obligations between the husband and the
wife
1. Mutual fidelity, cohabitation, and respect
2. Mutual assistance and support
3. Right of the wife to use the husbands name
STATELESSNESS
1. DEPRIVATION of citizenship for any cause.
2. RENUNCIATION of nationality by certain acts, express or
implied
3. VOLUNTARY RELEASE from his original state
4. BORN in a country which recognizes only the principle of
jus sanguinis but whose law of the parents recognizes only
the principle of jus soli.
Personal Law of stateless individuals
The Hague Conference of 1928 on International Private Law
suggested that the personal law of stateless individuals shall be:
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1. the law of the domicile (habitual residence)

2. secondarily the law of the place of temporary
residence
RULES ON STATUS IN GENERAL
FACTUAL SITUATION
1. Beginning of personality
2. Ways and effects of
emancipation
3. Age of majority
4. Use of names and
surnames
5. Use of titles and nobility
6. Absence
7. Presumptions of death
and survivorship

POINT OF CONTACT
National law of the child
National law
National law
National law
National law
National law
Lex fori

ANNULMENT OF VOIDABLE MARRIAGE AND DECLARATION OF

NULLITY OF A VOID MARRIAGE
FACTUAL SITUATION
1) Grounds for annulment (if
the marriage is voidable
merely)
2) Grounds for declaration
of nullity (if marriage is
void ab initio)

POINT OF CONTACT
The law alleged to have been
violated: in other words, it is
the law of the place of
celebration (lex loci
celebrationis) subject to
certain exceptions that furnish
the grounds)

ARTICLE 26. All marriages solemnized outside the RP is

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), Articles 36, 37, and 38.
Article 35:
The ff. marriages shall be void from the beginning:
*those contracted by any party below 18 years of age even
with the consent of parents or guardians
*those bigamous or polygamous marriages not falling under
Art. 41
* those subsequent marriages that are void under Art. 53
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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 of such incapacity becomes manifest only after its
solemnization.
Article 37:
Marriages between the ff. are incestuous and void from the
beginning whether the relationship between the parties be
legitimate or illegitimate:
1. between ascendants and descendants of any
degree
2. between brothers and sisters of the full or half
blood
Article 38:
The ff. marriages shall be void from the beginning for reasons of
public policy:
1. between collateral blood relatives, whether legitimate
or illegitimate, up to the 4th civil degree
2. between step-parents and step-children
3. between parents-in-law and children-in-law
4. between the adopting parent and adopted child
5. between the surviving spouse of the adopted child
and the adopter
6. between an adopted child and a legitimate child of the
adopter
7. between adopted children of the same adopter
8. between parties where one, with the intention to marry
the other, killed that persons spouse, or his or her
own spouse.
REQUIREMENTS TO PROVE A FOREIGN MARRIAGE:
1. the existence of the pertinent provision of the foreign
marriage law
2. the celebration or performance of the marriage in
accordance with said law
45 | P a g e

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 likewise have the capacity to remarry
under the RP law.
SIMPLY PUT: If valid where celebrated, it is also valid here.
NOTES:
Insofar as the grounds for annulment or nullity are
concerned, it is not the National law that governs, it
is the LEX LOCI CELEBRATIONIS, subject to certain
exceptions.
The grounds for LEGAL SEPARATION are those
indicated in the national law of the parties
concerned, and not those of the place of celebration
of marriage. Art. 15 will apply because a suit or legal
separation necessarily admits the validity of the
marriage.
Two Filipinos are married by the Philippine
Ambassador to the US inside the RP Consulate in
Washington D.C. In US, lets say, an Ambassador is
authorized to perform marriages, will such marriage
be given cognizance in the RP? Ans: NO. Having been
celebrated in the RP consulate in Washington, the
marriage is considered to have been performed in
the Philippines. Under our law, the ambassador
cannot perform a marriage; ONLY CONSULsGENERAL, and VICE-CONSULS can under the Family
Code.
Since we follow the NATIONALITY THEORY, our courts
have jurisdiction to take cognizance of annulment
and nullity suits where the litigants are Filipinos, or
where they are domiciliaries of the Philippines.
Church annulments of marriages and declarations of
their nullity are only for religious purposes, and are
not binding on our civil laws and courts of our
country, unless amendments to our family Code are
made.
Art. 36 OF FC: 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
46 | P a g e

likewise be void if such incapacity becomes manifest

only after its solemnization.
Under Church laws, examples of PHYCHOLOGICAL
INCAPACITY will include inter alia:
1. A wrong concept of marital vows and
marital infidelity
2. Alcoholism
3. Gambling
4. Womanizing
5. Adamant refusal to give support to a
degree incompatible with a mature
understanding of responsible married life
This degree is of course subject to determination by
the courts, particularly the SC. And even if these
causes should manifest themselves long after the
wedding, said causes are considered to be
potentially existing already at the time of the
celebration of the marriage.
ABSOLUTE DIVORCE
FACTUAL SITUATION
1) if sought in the RP (whether
by Filipinos or by foreigners)
2) if obtained abroad:

POINT OF CONTACT
1) lex fori (therefore, will not
be granted)

a) bet. Filipinos

a)

b) bet. Foreigners

c) mixed

national law (therefore,

not valid here even if valid
abroad; and this is true
regardless of the divorce)
b) National law (if valid in the
State granting it and valid
according to the national law of
the parties, will also be valid
here)
c) apply (a) and (b)
respectively.

ABSOLUTE DIVORCE Distinguished from ANNULMENT

ABSOLUTE DIVORCE
Presupposes a VALIDLY
EXISTING MARRIAGE
47 | P a g e

ANNULMENT
Ends a marriage which though
considered valid in the interim,

nonetheless, is DEFECTIVE
Granted for causes
Granted for causes AT THE
SUBSEQUENT to the marriage VERY TIME THE MARRIAGE
ceremony
IS ENTERED INTO
KINDS OF DIVORCE:
1) ABSOLUTE DIVORCE (Divorce a vinculo matrimoniee)
marital ties are dissolved.
2) RELATIVE DIVORCE (divorce a mensa et thoro)separation from bed and board or legal separation,
where parties remain married, although this time,
they are allowed to live separately from each other.
PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP, AND
FUNERALS
FACTUAL SITUATION
- Paternity and filiation
- Including Parental
Authority and
- Reciprocal support
- Legitimacy
- Legitimation
- Recognition
- Presumptions of
legitimacy
- Rights and obligations of
parents and children
- Including parental
authority and reciprocal
support

Adoption- creation of the

status of adoption; rights
and obligations of
adopter and adopted.

Guardianship

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POINT OF CONTACT
If legitimate, NATIONAL LAW
OF THE FATHER
If illegitimate, NATIONAL LAW
OF THE MOTHER.
If illegitimate but recognized
by the father, the NATIONAL
LAW OF THE FATHER.
Determination of whether
legitimate or illegitimate,
NATIONAL LAW OF THE
FATHER, in general.
Doctrine of Immutability of
Status- change of parents
nationality does not affect the
status of the child.
In general, NATIONAL LAW OF
THE ADOPTER.
In the Philippines, adoption by
a Filipino does not confer
Filipino citizenship on an
adopted alien child.

a) Over the person

- appointing court

powers of guardian

b) Over the property

- appointing court

powers of guardian

c) over the person and over

the property (general
guardian)
- appointing court
-

powers of guardian

- Funerals- incidents thereof

court of the domicile of

the ward
coextensive with those of
the appointing court (law
of the appointing state)
court where the property
if found (lex rei sitae)
coextensive with those of
the appointing court

court where the property

and the ward are found
coextensive with those of
the appointing court

Where the body is buried.

FUNERALS
-

the incidents of funerals are governed by the law of the

country where the body is to be buried.
The duty and the right to make arrangements for the
funeral of a relative devolve on the persons obliged to
support the deceased while still alive.
Every funeral shall be in keeping with the social standing
of the deceased. The higher the social standing of the
deceased in life, the more dignified and expensive his
funeral be, as a general rue. Prohibited is pompous and
elaborate funeral of a criminal on whom the death penalty
has been inflicted.

The "center of gravity" approach, first adopted by the Court of

Appeals of New York, might be characterized as a simplified
version of the "most significant relationship" test of the Second
Restatement. This approach authorizes courts to look at all the
existing contacts between the various parties to a suit and
various jurisdictions. Ultimately, the court should choose the law
of whatever jurisdiction is most closely tied to the case.
49 | P a g e

HOW FOREIGN LAW IS GIVEN APPLICATION IN THE PHILIPPINES:

1.
2.
3.
4.

By statutory directives (consent of the State)

By agreement of the parties
By treaty or convention
By conflict of laws rule

In their absence -A. Principles governing Conflict of Law Cases

1. Substance vs. Procedural Principles
All matters of procedure are governed by the law of the forum where the case is filed,
while matters of substance are governed by the law of the country where the cause of
action arose.

PROBLEM: Some laws may be treated by one country as procedural and by

another country as substantive (e.g. statute of limitations)

SOLUTIONS:
Government Interest Analysis - the law of the country whose interest is most
impaired by failure to apply its statute should be applied
Borrowing Statute - the law of the country has a statute borrowing the
prescriptive period provided in the foreign statute; EXCEPTION: when contrary
to public policy or prohibitive laws
2. Center of Gravity Doctrine (Grouping of Contacts Principle or State of the
Most Significant Relationship Theory)
Law of the state which has the most significant relationship with the occurrence and
with the parties determines their rights and liabilities in tort or in contract
3. Renvoi Doctrine (Table Tennis Theory)
The conflict of law rule of the forum resorts to the foreign law, which in turn refers
back to the law of the forum.

RENVOI DOCTRINE APPLIED

50 | P a g e

Aznar vs. Garcia, G.R. No. L-16749, Jan. 3, 1963

FACTS:
Edward Christensen, who at his death was a US citizen but domiciled in the
Philippines, left a will, devising unto Maria Helen a certain amount of money and
giving the rest of his estate to Maria Lucy. Helen opposed the partition on the ground
that she is deprived of her legitime. Her contention is that the law of California directs
that the law of the domicile (Philippines) should govern the will.
ISSUE: Whether or not the national law or the domiciliary law should apply
HELD:
The intrinsic validity of wills is governed by the national law of the decedent. In the
present case, the national law of Edward is the laws of California. However, there were
two conflicting California laws regarding succession. One is enunciated in In Re
Kaufman (which does not provide for legitimes) and another is Art. 946 of the
California Civil Code (which provides that the law of the domicile applies). SC held
that the national law is Art. 946, which is the conflict of laws rule of California. The
reason is that In Re Kaufman applies only to residents while Art. 946 is specific to nonresidents. Thus, since Art. 946 contains a refer-back to Philippine laws (the law of the
domicile), then Maria Helen is entitled to her legitime.
4. Lex Fori
The law of the forum governs all matters pertaining to procedural or remedial rights.
B. Applicability of Foreign Laws and its Exceptions
WHEN FOREIGN LAW, EVEN THOUGH APPLICABLE, MAY NOT BE GIVEN
APPLICATION:
1. Foreign law contravenes prohibitive law or public policy of the forum
2. Relationship of the parties affects public interest
3. Real property is involved (apply lex rei sitae)
4. Foreign law, judgment or contract is contrary to a sound and established public
policy of the forum
5. Foreign law is procedural in nature (lex fori governs procedural matters)
6. Foreign law is penal in nature

EXCEPTION: CONTRARY TO SOUND PUBLIC POLICY

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Bank of America, NT vs. American Realty Corporation, .G.R No. 133876, Dec. 29,
1999

FACTS:
Bank of America, duly licensed to do business in the Philippines and existing under the
laws of California, USA, granted US Dollar loans to certain foreign corporate
borrowers. These loans were secured by two real estate mortgages by American Realty,
a domestic corporation. When the borrowers defaulted, Bank of America sued them
before English courts. While these cases were pending, Bank of America likewise
judicially foreclosed the real estate mortgages in the Philippines. Thus, American
Realty sued for damages against Bank of America.
ISSUE: Whether or not Bank of America can judicially foreclose the real estate
mortgages despite pendency of the civil suits before English courts
HELD:
English law purportedly allows the filing of judicial foreclosure of mortgage despite
pendency of civil suit for collection. But English law was never properly impleaded
and proven. Thus, the doctrine of processual presumption applies.
SC further held that even assuming arguendo that English laws were proven, said
foreign law would still no find applicability. When the foreign law, judgment or
contract is contrary to a sound and established public policy of the forum, the said
foreign law, judgment or order shall not be applied.
Additionally, prohibitive laws concerning persons, their acts or property, and those
which have for their object public order, public policy and good customs shall not be
rendered ineffective b laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country. The public policy sought to be protected
in the instant case is the principle imbedded in our jurisdiction proscribing the splitting
of a single cause of action.
Moreover, the foreign law should not be applied when its application would work
undeniable injustice to the citizens or residents of the forum.
C. Authentication, Electronic Evidence and Judicial Cognizance of Foreign
Judgments
**To be recognized by Philippine courts, foreign laws and judgments must be alleged
and proved.
HOW FOREIGN PUBLIC DOCUMENTS ARE PROVED:
1. Official publication

52 | P a g e

2. Certified true copy or one attested by the officer having the legal custody of the
record, or by his deputy, and accompanied with a certificate that such officer has
custody

The certificate must be made by a secretary of the embassy or legation, consul

general, consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is
kept
Authenticated by his seal of office

**If the foreign law or judgment does not comply with the above requirements, it will
not be recognized and the Doctrine of Processual Presumption will apply (Philippine
courts will assume the foreign law is the same as Philippine laws).

GENERAL RULE: Philippine courts are not authorized to take judicial notice
of foreign laws.

EXCEPTIONS:
Where there are exceptional circumstances when the foreign laws are already
within the actual knowledge of the court (generally known or actually ruled
upon in a prior case)
Where the courts are familiar with the specific foreign laws (e.g. Spanish civil
law)
Where the adverse party did not dispute the application of foreign law
Where the tribunal is a quasi-judicial body which is not bound by strict rules of
technicality

conflict of laws - midterms

1. Conflict of laws or private international law is that part of municipal law of a state
which directs its courts and administrative agencies, whenever a foreign element is
involved, whether or not a foreign law mist apply.
2. A problem is said to contain a foreign element when it involves a factual situation
transgressing boundaries which involves two or more laws of state or sovereign.
3. In distinguishing private international law from public international law, the
following considerations are evident:
a. with respect to its nature, private International law is private or municipal, and
public international law is public
b. with respect to the person involved, in private international law the subject of
the legal issue is a private individual, whereas in public international law, the

53 | P a g e

subject of the factual issue are sovereign states or other international

organizations.
c. with respect to the transactions, in private international law the issue at hand
involves municipal or private transactions where as in public international law, the
transaction involves international maritime.
d. with respect to the remedies available, private international law may seek
judicial remedies in the proper forum, whereas public international law remedies
are either the resultant of peaceful or non-peaceful means. Since in public
international law sovereigns are involved, friendly means of settling disputes are
always the primary consideration.
4. The specific aims or functions of Conflict of Laws are:
a. to determine which forum or country has jurisdiction
b. to determine the effectiveness, validity of the applicable law
c. the applicability to a particular case of either a foreign or local law
5. Philippine Court may acquire jurisdiction over a case involving a foreign element
when:
a. the court acquire jurisdiction over the subject matter
b. the court acquire jurisdiction over the res
c. the court acquire jurisdiction over the person
6. The principle of forum non conveniens provide that a sovereign state may refuse
to take cognizance of a particular case for to do so would result to inconvenience
the court. its manifestations are: a. the court dockets are clogged; b. the evils of
the forum shopping are sought to be curbed; c. the court has no particular interest
over the case; d. there are other courts open. (2)
7. The philippine court may act on a problem involving a foreign element if: (8)
a. the conflict rules of the Philippines provide that such particular case is within
its jurisdiction
b. that the application of foreign law was not pleaded and proved
c. the issue involved falls within the exception of law on comity.
d. when the doctrine of revoi has been applied by a foreign entity
8. The Philippine court has no choice but to apply its internal laws when:
a. the conflict of law rules expressly so provides;
b. the foreign law has not been properly pleaded or proved;
c. the issue is within the exception on the application of foreign law (law on
comity)
9. Processual Presumption provides that in the absence of the proof as evidence to
the contrary, the Philippine law or the law of the forum is the same to the foreign
law.
Otherwise stated, if the case involves foreign law, interpretation of foreign courts
must be observed except, when somewhere in our law, we have similarly worded
law, in this regard, our previous rulings or applications must be applied.
10. The following are the exceptions to comity

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