Professional Documents
Culture Documents
Conflict of Laws REVIEWER
Conflict of Laws REVIEWER
Conflict of Laws REVIEWER
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.
Forcible:
1. severance of
diplomatic relations,
2. retorsions,
3. reprisals,
4. embargo,
5. boycott,
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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.
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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.
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 go-
- a law that generally governs his status, his capacity, his family
relations, and the consequences of his actuations.
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- 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.
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
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- 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
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
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- 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.
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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:
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.
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The following constitute the internal requisites for the legitimation of an
illegitimate child:
When we mention the relationship between the child and the parents, we
inferentially include also the following matters:
Adoption
- the process of making a child, whether related or not to the adopter,
possess in general the rights accorded to a legitimate child.
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Note:
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.
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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.
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)
Exceptions:
a) successional rights - national law of the decedent
b) capacity to succeed - national law of the decedent
c) contracts involving real - lex loci voluntatis/ lex loci
property but which do not intentionis
deal with the title thereto
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d) contracts where the real - the principal contract (usu. Loan)
property is given as security is governed by the proper law of
the contract (lex loci voluntatis/
lex loci intentionis
b) means of transportation
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3) Intangible personal property
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
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k) franchises k) law of the place that granted
them
l) goodwill of a business l) law of the place where the
and taxation thereon business is carried on
Chose
- a thing, an article of personal property
- a chattel personal, and is either IN ACTION OR IN 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 PUBLIC’S 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.
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domicilii/ RP law/ lex
loci celebrationis
b) made by a Filipino abroad b) lex nationalii/ lex loci
celebrationis
c) made by an alien in the RP c) lex nationalii/ lex loci
celebrationis
2) Extrinsic validity of JOINT
WILLS (made in the same
instrument)
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assets are found
b) powers b) co-extensive with the
qualifying or the
appointing court
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.
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.
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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 another’s person or property,
independent of a contract
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
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- 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.
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.
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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.
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.
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- 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
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.
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
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
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- 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.
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
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- 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.
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 CHOICE
- a result of the voluntary will and action of the person concerned
RESIDENCE
- a more or less temporary place of abode which may be located in
several places
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- 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 mother’s 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:
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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.
The judicial declaration of absence shall not take effect until six
months after its publication in a newspaper of general circulation.
PRESUMPTION OF DEATH
The absentee shall not be presumed DEAD for the purpose of opening his
succession till after an absence of 10 years.
SURVIVORSHIP
The rules on survivorship are found in Article 43 of the Civil Code and in
Rule 131 of the 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
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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;
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 POINT OF CONTACT
1. ) if celebrated abroad 1.)
* between Filipinos LEX LOCI CELEBRATIONIS (without
prejudice to the exceptions under
bigamous, polygamous, and
incestuous marriages and consular
marriages
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and bet. Ascendants
and descendants.
MARRIAGE AS A STATUS
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This rule shall not apply:
Article 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
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
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- the authority to enact laws
- the competence of a person’s 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
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- each spouse still owns his/her property, but the husband administers
all the properties.
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.
Abandonment
- Synonymous to CRIMINAL DESERTION
- A husband’s or wife’s 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
- 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
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- voluntary sexual intercourse of a married person other than the
offender’s 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.
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).
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.
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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.
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.
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.
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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.)
Condonation
- forgiveness, express or implied
- to constitute valid defense, it must be free, voluntary, and not induced
by duress or fraud.
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;
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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 husband’s and his wife’s relations by blood, or
between the wife and the husband’s relations by blood.
SECONDARY AFFINITY
- subsists between the husband’s and his wife’s relations by marriage
COLLATERAL AFFINITY
- Subsists between the husband and the relations of his wife’s relations
ENUMERATION
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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
In other words,
2. Direct
- Constitutions
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- Codifications
- Special Laws
- Treaties and Conventions
- Judicial Decisions
- International Customs
Kinds of Jurisdiction
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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
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
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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
1. LEX FORI
2. LEX CAUSAE
3. UNIVERSAL ANALYTICAL
4. DUAL THEORY OF LEX FORI AND LEX CAUSAE
5. AUTONOMOUS THEORY
6. TOTALITY THEORY
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2. juridical capacity
1. Natural-born
2. Naturalized
3. Citizen by election
1. Jus Soli
2. Jus Sanguinis
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.
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
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.
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Emancipation takes place by:
ASPECTS OF MARRIAGE
1. As a contract
2. As a union, a status, a legal relation
Personal Rights and Obligations between the husband and the wife
STATELESSNESS
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FACTUAL SITUATION POINT OF CONTACT
1. Beginning of personality National law of the child
2. Ways and effects of National law
emancipation
3. Age of majority National law
4. Use of names and surnames National law
5. Use of titles and nobility National law
6. Absence National law
7. Presumptions of death and Lex fori
survivorship
Article 35:
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:
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Marriages between the ff. are incestuous and void from the beginning
whether the relationship between the parties be legitimate or illegitimate:
Article 38:
The ff. marriages shall be void from the beginning for reasons of public
policy:
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.
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Two Filipinos are married by the Philippine Ambassador to the
US inside the RP Consulate in Washington D.C. In US, let’s 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 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
likewise be void if such incapacity becomes manifest only after
its solemnization.
Under Church laws, examples of PHYCHOLOGICAL INCAPACITY
will include inter alia:
ABSOLUTE DIVORCE
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2) if obtained abroad:
KINDS OF DIVORCE:
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and reciprocal support or illegitimate, NATIONAL LAW OF
THE FATHER, in general.
FUNERALS
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Prohibited is pompous and elaborate funeral of a criminal on whom
the death penalty has been inflicted.
In their absence --
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.
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
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
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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.
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 non-
residents. 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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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
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.
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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.
**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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