Introduction

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, 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:

1. A wrong concept of marital vows and marital infidelity

2. Alcoholism 3. Gambling 4. Womanizing

5. Adamant refusal to give support to a degree incompatible with a mature

understanding of responsible married life This degree is of course subject to determination by the courts, particularly the SC. And even if these causes should manifest themselves long after the wedding, said causes are considered to be

potentially existing already at the time of the celebration of the marriage.

ABSOLUTE DIVORCE

FACTUAL SITUATION POINT OF CONTACT 1) if sought in the RP (whether

by Filipinos or by foreigners) 1) lex fori (therefore, will not be granted)

2) if obtained abroad:

a) bet. Filipinos a) nati

onal law (therefore, not valid here even if valid abroad; and this is true regardless of the divorce) b) bet. Foreigners b) National law (if valid in the

State granting it and valid

according to the national law of the parties, will also be valid here)

c) mixed c) apply (a) and (b)

respectively.

ABSOLUTE DIVORCE Distinguished from ANNULMENT

ABSOLUTE DIVORCE ANNULMENT

Presupposes a VALIDLY

EXISTING MARRIAGE Ends a marriage which though considered valid in the interim, nonetheless, is DEFECTIVE Granted for causes

SUBSEQUENT to the marriage ceremony

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 POINT OF CONTACT - 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

If legitimate, NATIONAL LAW OF THE FATHER

If illegitimate, NATIONAL LAW OF THE MOTHER.

If illegitimate but recognized by the father, the NATIONAL LAW OF THE FATHER.

Determination of whether legitimate or illegitimate, NATIONAL LAW OF THE FATHER, in general.

Doctrine of Immutability of Status- change of parents’

nationality does not affect the status of the child.

- Adoption- creation of the status of adoption; rights and obligations of

In general, NATIONAL LAW OF THE ADOPTER.

adopter and adopted. In the Philippines, adoption by a Filipino does not confer Filipino citizenship on an adopted alien child.

- Guardianship a) Over the person - appointing court - powers of guardian

b) Over the property - appointing court - powers of guardian

c) over the person and over the property (general guardian)

- appointing court - powers of guardian

- court of the domicile of the ward

- coextensive with those of the appointing court (law of the appointing state)

- court where the property if found (lex rei sitae) - coextensive with those of

the appointing court

- court where the property and the ward are found - coextensive with those of

the appointing court - Funerals- incidents thereof Where the body is buried.

FUNERALS

- the incidents of funerals are governed by the law of the country where the body is to be buried.

- The duty and the right to make arrangements for the funeral of a relative devolve on the persons obliged to support the deceased while still alive.

- Every funeral shall be in keeping with the social standing of the deceased. The higher the social standing of the deceased in life, the more dignified and expensive his funeral be, as a general rue. Prohibited is pompous and elaborate funeral of a criminal on whom the death penalty has been inflicted.

The "center of gravity" approach, first adopted by the Court of Appeals of New York, might be characterized as a simplified

version of the "most significant relationship" test of the Second Restatement. This approach authorizes courts to look at all the existing contacts between the various parties to a suit and

various jurisdictions. Ultimately, the court should choose the law of whatever jurisdiction is most closely tied to the case.

HOW FOREIGN LAW IS GIVEN APPLICATION IN THE PHILIPPINES:

1. By statutory directives (consent of the State) 2. By agreement of the parties

3. By treaty or convention 4. 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