Conflicts Report.docx

MARRIAGE AND DIVORCE

I.

Conflict Rules on Status and Capacity (Personal Law) Personal law, as a concept, is the law which defines an individual’s status and capacity. A. Theories on Personal Law (1) Nationality or Personal Theory (lex nationalii) The status and capacity of an individual are generally governed by the law of his nationality. (2) Domiciliary or Territorial Theory The status and capacity of an individual are governed by the law of the domicile. (3) Situs or Eclectic Theory The particular place of an event or transaction is determinative of the controlling law.

II.

Conflict Rules on Marriage 1. Marriage as a contract A. Intrinsic validity is generally governed by the parties’ personal laws, either Nationality or Personal Theory (lex nationalii), or Domiciliary or Territorial Theory. In the Philippines, our Civil Code in Article 15 adheres to the lex nationalii. Hence, laws relating to family rights and duties, or the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. The legal capacity to contract marriage is determined by the national law of the party concerned. For Filipino citizens, Article 5 provides that the parties must be a man and a woman of at least 18 years of age and not under any impediments mentioned in Articles 37 and 38 of the Family Code. For foreigners contracting marriages in the Philippines, Article 21 of the Family Code requires them to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials, before they can be issued a marriage license. B. Extrinsic validity (formal requisites) is generally governed by lex loci celebrationis or the law of the place where the marriage is celebrated because of the predictability and the interstate order arising from society’s interest in marriage. (1) Between Filipinos celebrated abroad The validity of marriage is governed by lex loci celebrationis. In accordance with the first paragraph of Article 26 of the Family Code, if the marriage is valid in the place of the celebration, the same is also valid in the Philippines. If follows the situs theory, and not the Nationality Theory.

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However, the void marriages under Article 35 (1), (4), (5), and (6); Articles 36, 37, 38, and same-sex marriage remain void in the Philippines regardless of the place of their celebration as they shall still follow the Nationality Theory. (2) Mixed marriages celebrated abroad Their validity is governed by lex loci celebrationis. However, marriages that are highly immoral such as bigamous or polygamous marriages, and universally considered incestuous marriages such as those under Article 37 of the Family Code are considered as void regardless of the law of the place where they are celebrated. (3) Mixed marriages celebrated in the Philippines The lex nationalii or the national law of the Filipino governs, otherwise, public policy may be militated against. (4) Between foreigners celebrated abroad The validity of marriage is governed by lex loci celebrationis. However, marriages that are highly immoral such as bigamous or polygamous marriages, and universally considered incestuous marriages such as those under Article 37 of the Family Code are considered as void regardless of the law of the place where they are celebrated. (5) Between foreigners celebrated in the Philippines The validity of marriage is governed by lex nationalii or their national laws. C. Rules on Extrinsic Validity of Certain Situations (1) Proxy Marriages Philippine law does not permit proxy marriages but if celebrated in a foreign state in accordance with the formalities prescribed therein, it may be recognized in the Philippines under the lex loci celebrationis rule. (2) Common Law Marriages Philippine law does not recognize proxy marriages but if valid in the State where the parties cohabited, it may be recognized in sister States. (3) Marriage on Board a Vessel on High Seas The parties must comply with the laws of the nation whose flag the ship is flying. (4) Consular Marriages Marriage performed by a consular or diplomatic agent of a sending state is valid in the receiving state if the latter agreed to his acting in such capacity.

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(5) Plural Marriages Where the parties or the husband is a Muslim, the validity of up to four marriages of the same husband is recognized under the Philippine Muslim Code on Personal Laws. 2. Marriage as a status (1) The personal rights and obligations of the spouses If the spouses have the same nationalities and domicile, their personal rights and marital obligations are governed by their personal laws either lex nationalii or lex domicilii as the case may be. If the spouses have different nationalities or domicile, the personal law of the husband shall govern their personal rights and marital obligations. a. The effect of change of nationality of the spouse(s) on their personal rights and obligations i. ii. iii.

If both spouses acquire a new common nationality, the new national law will govern. If only one of the spouses changes his or her nationality, the law of the last common nationality of the spouses will govern. If there was never any common nationality or the spouses retain their different nationalities after the marriage, the national law of both spouses will govern, or the national law of the husband at the time of the marriage that shall govern.

The rules are subject to the exceptions where the national law of the husband violates the public policy of the forum; or the national law of the wife is the law of the forum. (2) The property relations of the spouses a. Under the Hague Convention The internal law designated by the spouses before marriage will govern their matrimonial property regime. In the absence thereof, the internal law of the state where the spouses fix their first habitual residence will apply. b. Under Philippine Rule If the spouses are both Filipinos and spouses of mixed marriages, it is the Philippine laws that shall govern, in the absence of contrary stipulation, regardless of the place of the celebration of marriage and residence of the parties. However, if both spouses are foreigners, it is the personal law of the husband that shall govern. With respect to the extrinsic validity of contracts affecting real properties, it is the lex situs that shall govern, whether the properties are situated in the Philippines or in a foreign country.

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c. Doctrine of Immutability of Matrimonial Regime states that the original property regime at the start of the marriage shall remain regardless of the change of the nationality on the part of the husband or of the wife or of both. 3. Legal Separation or Relative Divorce a. Grounds The grounds for legal separation of spouses having the same nationality are governed by their national law. However, if the spouses are of different nationalities, the grounds given under both their national laws shall all be considered proper grounds. b. Jurisdiction In case of aliens, jurisdiction is not assumed by the forum state unless the national law of the parties recognizes its jurisdiction. Foreigners’ married abroad may file for legal separation in the Philippines as long as jurisdiction over them is obtained. Other countries may assume jurisdiction on the basis of the domicile of one of the parties or the matrimonial domicile. 4. Annulment and Declaration of Nullity of Marriages a. Grounds The grounds for the annulment and declaration of nullity are governed by lex loci celebrationis. However, the void marriages under Article 35 (1), (4), (5), and (6); Articles 36, 37, 38, and same-sex marriage remain void regardless of the place of their celebration, if the parties are citizens of the Philippines. b. Jurisdiction It is vested in the court of the nationality or domicile of the parties, and not the place of the celebration of the marriage. In cases of Filipino litigants and domiciliaries, the Philippine courts have jurisdiction. 5. Absolute Divorce obtained abroad a. Under Hague Convention The granting of divorce must comply with the national law of the spouses and the law of the place where the application for divorce is made. The requisites for a foreign divorce to be recognized in contracting states are provided at the date of the filing of the proceedings: i. Petitioner and respondent had habitual residence in the state where the divorce was obtained; ii. Both spouses were nationals of the said state; and iii. Although petitioner was a national of another state, he or she had his or her residence in the place where the divorce was obtained.

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b. Under Philippine Law Philippine law does not provide for absolute divorce, hence, our courts cannot grant it. A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad because of Articles 15 and 17 of the Civil Code as the same is considered contrary to public policy and morality. Because of the Nationality Principle under Article 15, only Philippine nationals are covered by the policy against absolute divorces. Hence, in Pilapil vs. Ibay-Somera (G.R. No. 80116, June 30, 1989), the Court stated that the divorce and its legal effects obtained by a foreigner in Germany in this case, may be recognized in the Philippines insofar as the foreigner is concerned provided they are valid according to their national law in view of the Nationality Principle on the status of persons. In Van Dorn vs. Romillo, Jr. (G.R. No. 68470, October 8, 1985), where the husband was no longer a Filipino citizen when he obtained the divorce from his Filipino spouse, the validity of the divorce was determined based on the law of the country to which he is a citizen at the time the valid divorce was obtained. With respect to mixed marriages, Article 26 of the Family Code allows the Filipino to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry as held in Garcia vs. Recio (G.R. No. 138322, October 2, 2001). In determining the application of the said provision, the Court in Republic vs. Orbecido III (G.R. No. 154380, October 5, 2005) held that the reckoning point is not the citizenship of the parties at the time of the celebration of marriage but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. Hence, in Republic vs. Iyoy (G.R. No. 15277, September 21, 2005), Article 26 of the Family Code was held inapplicable because at the time the divorce was obtained abroad by a Filipino citizen from his/her Filipino spouse. In the more recent case of Republic vs. Manalo (G.R. No. 2210229, September 21, 2005), the Court considered valid in the Philippines the divorce obtained abroad by a Filipino spouse. c. Right to Re-Marry after Divorce The divorce must be judicially recognized first by the Philippine courts and annotated in the local civil registry before the Philippine national can remarry.

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