DE LA INICIACIÓN PROFESIONAL DOCENTE EN ESPAÑA
3. Síntesis comparativa
FACTS : Moro Hassan and Mora Dumpo were legally married according to the rites and practices of the Mohammedan. Mora Dumpo allegedly contracted another marriage with another man without her previous marriage being dissolved.
Respondent was then prosecuted and convicted of the crime of bigamy.
Respondent appealed alleging that her second marriage was null and void according to the Mohammedan rites on the ground that her father had not given his consent thereto.
ISSUE : Whether or not she should be prosecuted for bigamy.
HELD : No. it appears from the Mohammedan rites that before an Imam or Mohammedan priest could solemnize marriage, it is first necessary to secure the consent of the bride’s father or, in the absence thereof that of the chief of the tribe to which she belongs for the marriage to be valid, otherwise absence of such consent would make the marriage void.
In the case at bar there was a failure of the respondent to obtain such consent hence she should not be prosecuted for bigamy.
WONG WOO YU V. VIVO 13 SCRA 552
FACTS : In the proceedings held before the Board of Special Inquiry, petitioner declared that she was married to Perfecto Blas a Filipino in China in 1929 an that their marriage was celebrated by a village leader. On the basis of such declaration, the BSI admitted her into the Phil. as a non-quota immigrant. However this decision was reversed by the new set members of the BSI on the ground that there was no substantial basis of a husband-wife relationship between Woo and Blas and that there was some discrepancies found in the statements made by them in sever investigations conducted by immigration authorities concerning their alleged marriage before a village leader in China in 1929.
ISSUE : Whether or not the alleged marriage be given effect in the Phil.
HELD : No. The rule that a marriage contracted outside the Phil. which is valid under the law of the country in which it was celebrated is also valid in the Phil. cannot be given effect in the case at bar because there was no proof presented relative to the law of marriage in China.
In such case we should apply the general rule that in the absence of proof of the foreign law, it should be presumed that it is the same as our own.
Since our law only recognizes a marriage celebrated before any of the officers mentioned under the law and a village leader is not one of them, it is clear that petitioner’s marriage, even if true, cannot be recognized in this jurisdiction.
4. Intrinsic validity of marriage RULES GOVERNING INTRINSIC VALIDITY
controlled by the parties personal laws (either domiciliary or nationality) 5. Effects of marriage
a. personal relations between spouses
MARRIAGE AS A STATUS
Marriage as a status carries with it implications in two fields:
1. Personal rights and obligations of the spouses – personal affair between husband and wife and will not ordinarily be interfered with the courts of justice. Includes mutual fidelity, cohabitation, respect, assistance and support; right of wife to use husband’s surname; duty to follow husband’s residence;
GOVERNING LAW: National law of the husband.(given preference- Point of contact) Subsequent change of nationality of the spouses are proposed to have the following effects: (Effect of Change)
a. if both will have a common nationality – the new one b. if only one will change – the last common nationality
c. if there never was any common nationality – the national law of the husband at the time of the wedding (Hague Convention) (Paras)
• it is governed by the NATIONAL LAW OF THE PARTIES.
• if the spouses are of different nationalities, generally the national law of the husband may prevail as long as said law is not contrary to laws, customs and good morals of the forum.
• this includes mutual fidelity, respect, cohabitation, support, and the right of the wife to use the husband’s family name.
• Art 69. of the Family Code reads: “The husband and the wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should lived abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family.”
CASE:
Japanese woman came and admitted to the Philippines as transient. Her passport was found to have been forged. Deportation proceedings ensued.
Later she married a Filipino. Could she still be subject to deportation?
ANS: Yes. Mere marriage to a Filipino did not automatically make her a Filipino.
It is essential that she must not be possess any of the disqualifications for naturalization.
b. property relations of spouses
GOVERNING LAW: in the absence of a contrary stipulation in the marriage settlement, national of the husband, regardless of the place of celebration of the marriage and their residence. (Paras)
• it is governed by the national law of the husband without prejudice to what the Civil Code provides concerning REAL property located in the Philippines
•
Art 80 of the Family Code provides: In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by the Phil laws, regardless of the place of the celebration of the marriage and their residence. (Coquia)However, this rule shall not apply:
a. where both spouses are aliens
b. with respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and
c. with respect to the extrinsic validity of the contracts entered into in the Philippines not affecting property situated in a foreign country whose laws require different formalities for their extrinsic validity (Art. 80, Family Code)
NOTE: The subsequent change of the nationality of the husband or the wife has no effect on the spouses’ original property regime EXCEPT when the law of the original nationality itself changes the marital regime, in which case the property relations should change accordingly. This is the DOCTRINE OF IMMUTABILITY IN THE MATRIMONIAL PROPERTY REGIME.
Reasons:
1. Marital peace in property relationship shall be more or less guaranteed;
2. The spouse will not be able to prejudice creditors, who in turn cannot jeopardize the interest of the spouses;
3. Even the spouses may protect themselves from each
other.
IMMUTABILITY OF THE REGIME
DISTINGUISHED FROM THE MUTABILITY OF THE LAW
While subsequent change of nationality does not affect the original property regime (doctrine of immutability) in the marital property relationship, it cannot be denied that when the law of the original nationality itself changes the marital regime, the property relations has to change accordingly.
B. DIVORCE AND ANNULMENT
Art. 26 of the Family Code provides that : All marriages solemnized outside the Phil, in 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 Article 35, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have the capacity to remarry under Phil. Law.
ANNULMENT/DECLARATOIN OF NULLITY – lex loci celebrationis
Grounds for annulment (if the marriage is voidable merely) and grounds for declaration of nullity (if the marriage is void ab initio) are governed by 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 furnished the grounds
1. Jurisdiction to annul - in practically all civil countries following the nationality principle nationals of the forum are permitted to sue for annulment irrespective of their domicile. In many countries today however, jurisdiction is vested in the court of the domicile of the parties
Jurisdiction over the non-resident defendant is not essential. It is the status of the plaintiff that is in issue. He should be domiciled in the forum.
2. The governing law – lex loci celebrationis (of the marriage) determines the consequences of any defect to form. Generally, the same applies with reference to substantive or intrinsic validity. But with regard to capacity of the parties to marry, their national law is determinative
ABSOLUTE DIVORCES
GENERAL RULE: our courts only observe relative divorce (legal separation).
Any divorce sought in the Philippine courts will not be granted Filipino couples cannot obtain absolute divorces abroad and neither shall a valid divorce obtained abroad by Filipino couples be recognized here.
1. Valid divorce abroad between foreigners whose national law allow divorce
2. 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 have capacity to remarry under Philippine Law.
Hague Convention provides that the granting of divorce or separation must comply with the national law of the spouses and the law of the place where the application for divorce is made
Grounds for annulment (if the marriage is voidable merely) and grounds for declaration of nullity (if the marriage is void ab initio) are governed by 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 furnished the grounds
1. DIVORCE DECREES OBTAINED BY FILIPINOS
TENCHAVEZ V. ESCANO