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

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.
reprisals,
4.
embargo,
5.
boycott,
6.
non-intercourse,
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.
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.

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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
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 goa 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.
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

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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.

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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
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
a) Adultery
b) Concubinage
c) attempt by one spouse against the life of
the other

National law of the parties

a) if of the same or common nationality- the
common national law governs
b) if of different nationalities- the grounds
given by BOTH national laws should all be
considered proper grounds
NOTE: Residence requirement 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

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.

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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,
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
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 LEGITIMACY- IS NOT AFFECTED BY ANY
SUBSEQUENT CHANGE IN THE NATIONALITY OF THE PARENTS.

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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.

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.

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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
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,
usufruct,
transfers,
lease,
mortgages,
easement,
capacity of parties,
police power,
interpretation of
eminent domain,
documents,
effects of
taxation,
ownership,
co-ownership,
quieting of title,
accession,
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

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

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 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.
n) LEX REI SITAE

2) Tangible Personal Property

a) in general

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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.

EXCEPTIONS: SAME AS THOSE FOR REAL

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

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

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)

3) Intangible personal property

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

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)

c) taxation of debts
d) administration of debts

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

e) negotiability or nonnegotiability of an
instrument
f) validity of transfer, delivery
or negotiation of the
instrument

i)

law of the place of incorporation

j)

law of the place where the sale was

consummated

k)
l)

law of the place that granted them

law of the place where the business
is carried on

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

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.

m) patents, copyrights,
trademarks, trade names

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

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right to recover a debt or money

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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
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
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

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POINT OF CONTACT
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 deceased- regardless of
the location and nature of the property
Lex nationalii of the deceased
a) lex loci actus (of the

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

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

b) powers

a) if domiciled- where domiciled

at death
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 non-succession 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.
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

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a legal wrong committed upon anothers person or property, independent of a contract

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Crime
-

an act or omission punishable by law

Felony
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
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
jurisdiction over the particular subject matter in controversy, REGARDLESS of persons
who may be interested therein.

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FORUM-SHOPPING
the practice of looking over the courts of the world for possible advantages ought to be
curbed

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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
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
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.

15 | P a g e

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
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
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

16 | P a g e

less than 7 months, it is not deemed born if it dies within 24 hrs. after its complete delivery from
the maternal womb.

17 | P a g e

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.
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.
2.
3.
4.
5.

if both were under the age of 15, the older is presumed to have survived;
if both were above the age of 60, the younger is presumed to have survived;
if one is under 15 and the other above 60, the former is presumed to have survived;
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;
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

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

18 | P a g e

marriages)
b) Universally considered
incestuous, ie., bet. Brothers
and sisters and bet.
Ascendants and
descendants.
* mixed

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 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

POINT OF CONTACT
NATIONAL LAW OF THE HUSBAND
Note: Effect of subsequent change of
nationality

2) Property Relations between the Husband

and the Wife

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 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 Nationality- No 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:

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1.
2.
3.

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;
a person in the armed forces who has taken part in war, and has been missing for 4
years.
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
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

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committed by any person who shall contract a second or subsequent marriage before
the former marriage has been legally dissolved, or
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

21 | P a g e

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 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.
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.)

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23 | P a g e

TWO THINGS THAT MAY BE REVOKED BY THE INNOCENT SPOUSE:

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.
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.
2.
3.
4.

Conflict of laws is that part of the municipal law of the State

The direction to Courts and Administrative agencies
A legal problem involving a foreign element
The application or non-application of foreign law/foreign laws

Importance of Conflict of Laws

1.
2.

To adjust conflicting rights in international mercantile and corporate transactions

To solve personal, family, property and successional contractual problems, possessed of
facts or elements operating in two or more states.

24 | P a g e

Scope of Functions of Conflict of Laws

1.
2.
3.

To prescribe the conditions under which the court is competent to entertain such a
suit
To determine for each cases the particular territorial system of law by reference to
which the rights of the parties must be ascertained
To specify the circumstances in which a foreign judgment can be recognized as a
decisive of the question in dispute

In other words,
1.
2.
3.

The determination of which country has jurisdiction

The applicability to a particular case of either the local or the foreign law
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
1.
2.
3.

Jurisdiction over the subject matter

Jurisdiction over the person
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;
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

25 | P a g e

2.

By PRINTED AND PUBLISHED BOOKS OF REPORTS OF DECISIONS of the country

involved, if proved to be commonly admitted in such courts

26 | P a g e

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.
2.
3.
4.

The requisite proof thereof may not be adequate

They may contravene our established public policy
They may contradict one another: one cannot be guided by contradictions
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
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
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

27 | P a g e

4. cannot be easily terminated at the mere will or desire of the parties concerned
5. generally supposed to have a universal character

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THEORIES ON PERSONAL LAW OR THE LAW THAT SHOULD GOVERN STATUS AND CAPACITY IN
GENERAL
1.
2.
3.

Nationality Theory- Personal Theory

Domiciliary Theory- Territorial Theory
Situs Theory- Eclectic Theory

3 Kinds of Citizens of the Philippines

1.
2.
3.

Natural-born
Naturalized
Citizen by election

2 Theories on Whether Place or Ancestry Determines Citizenship

1.
2.

Jus Soli
Jus Sanguinis

Citizens of the Philippines Under the 1987 Constitution

1.
2.
3.
4.

Those who are citizens of the Philippines at the time of the adoption of the 1987
Constitution
Those whose fathers or mothers are citizens of the Philippines
Those born before 17 January 1973, of Filipino mothers, who elect Philippine citizenship
upon reaching the age of majority
those who are naturalized in accordance with law.

Qualifications for Naturalization

1.
2.
3.
4.
5.
6.
7.
8.

AGE. The petitioner must not be less than 21 years old on the date of the hearing of the
petition
RESIDENCE. he must have resided in the Philippines for a continuous period of not less
than 10 years.
MORAL. He must be of good moral character and
CONSTI. He must believe in the principles underlying the Philippine Constitution
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.
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.
LANGUAGE. he must be able to speak an write English or Spanish and any one of the
principal Philippine languages
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.
2.
3.

domicile of origin
constructive domicile
domicile of choice

Proposed Solution to the Renvoi

1.
2.
3.

Reject the Renvoi

Accept the Renvoi
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 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

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1.
2.

As a contract
As a union, a status, a legal relation

Substantial or Essential Requisites of Marriage of Filipinos

1.
2.
3.
4.
5.

legal capacity of the contracting parties

consent of the contracting parties freely given
marriage license, except in marriage of exceptional cases
authority of the person solemnizing the marriage
marriage ceremony

Personal Rights and Obligations between the husband and the wife
1.
2.
3.

Mutual fidelity, cohabitation, and respect

Mutual assistance and support
Right of the wife to use the husbands name

STATELESSNESS
1.
2.
3.
4.

DEPRIVATION of citizenship for any cause.

RENUNCIATION of nationality by certain acts, express or implied
VOLUNTARY RELEASE from his original state
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:
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
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:

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1.
2.

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between ascendants and descendants of any degree

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 4 th
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
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 CONSULs-GENERAL, and VICECONSULS 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 likewise be void if such incapacity becomes
manifest only after its solemnization.
Under Church laws, examples of PHYCHOLOGICAL INCAPACITY will include inter
alia:
1.
2.
3.
4.
5.

A wrong concept of marital vows and marital infidelity

Alcoholism
Gambling
Womanizing
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

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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

c) mixed

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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
Granted for causes SUBSEQUENT to the
marriage ceremony

ANNULMENT
Ends a marriage which though considered
valid in the interim, nonetheless, is
DEFECTIVE
Granted for causes AT THE VERY TIME THE
MARRIAGE 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.

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.

Guardianship

a) Over the person

appointing court
-

POINT OF CONTACT
If legitimate, NATIONAL LAW OF THE FATHER

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

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 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

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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.

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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

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.

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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

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
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

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**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

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