Brief survey of

CHOICE OF LAW

PROBLEMS in FAMILY

RELATIONSM. L. Perete

Adamson University

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Laws Relating to family rights

and duties, or to status, condition and legal capacity of

persons are binding upon

citizens of the Philippines,

even though living abroad.-

Art. 15, Civil Code All marriages solemnized

outside of the Philippines in

accordance with the laws in

force in the country where

they are solemnized, and valid

there as such, shall be valid in

the country… - Art. 26, Family

Code

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The formal requirements for marriage are governed by the law of the state of celebration – Art. 2, Hague Convention on the Celebration and Recognition of Validity of Marriage

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In Adong v. Cheong Seng Gee (1922), the SC held that while the Philippines adheres to the lex loci celebrationes in

determining the extrinsic validity of marriage, proof of the formal requisites for such marriage and compliance therewith is still necessary

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In People v. Mora Dumpo (1935),

Dumpo was convicted of bigamy

by the CFI of Zamboanga for

contracting a second marriage

under Mohammedan (Islamic)

law without dissolving her first

marriage to another Moslem. On

appeal, she claimed that her

second marriage was null and

void for lack of consent from her

father, or the leader of their

tribe, as required by their faith.

The Court, taking cognizance of

the testimony of the Imam,

reversed the finding of guilt.

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In Wong Woo Yu v. Vivo (1965),

WWY was admitted as a non-quota

immigrant upon her representations

that she was married a Filipino while

in Chingkang, China in 1929. A year

after, the Board of Commissioners

reversed. On Appeal, the SC upheld

the BoC on the ground that even if

the country adheres to lex loci

celebrationes, WWY was unable to

adduce proof of the Chinese law on

the formal requisites of marriage.

Using processual presumption, the

Court applied Philippine law and held

that there is no showing that WWY’s

marriage to a Filipino complied with

the formal requirements under our

domestic laws.

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In Yao Kee, et al v. Aida-Sy

Gonzales (1988), an alleged

marriage celebrated in accordance with the local

customs in a Province in China

was refused recognition by the

Court. On appeal, the SC

upheld, stating that while

custom (or unwritten law) is

recognized as a rule of law

under the lex loci celebrationes

rule, however, it needs to be

proved like a foreign written

(civil) law by oral testimony of

witnesses and/or published

decisions of courts.

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In Board of Commissioners, et al. v.

Villarosa, et al., (1991), the deportation

and arrest of William Gatchalian some 28

years after their entry into the Philippines

was questioned. The BOC claimed that G

was not Filipino because the marriage of

his grandfather and father to chinese

women in China were not proved. The

Court brushed aside the argument upon

the reasoning that (1) the non-presentation

of chinese law on marriage could not be

blamed on G who entered RP at 12 years

of age; and (2) the testimony of G’s father

and uncle re: said marriages before the

Philippine consulate is not self-serving and

admissible in evidence as statements or

declarations regarding family status or

pedigree. The Court further held that

following the presumption of validity of

marriage under Art. 220 of the Civil Code,

one who asserts the invalidity of marriage

has the burden of proving non-compliance

with the requirements of foreign law.

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Exceptions to the Lex Celebrationes

Rule (Art. 26, FC):1. Either or both parties are below

18 years of age;2. Bigamous/polygamous

marriages;3. Subsequent marriage performed

without recording in the Civil

Registry and Registry of Properties the judgment of

annulment or declaration of

nullity of former marriage, the

partition and distribution of

properties of the spouses, and

the children’s presumptive

legitimes

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Exceptions to the Lex Celebrationes Rule (Art. 26,

FC) – cont.:4. Mistake as to identity of

contracting party;5. One of the parties is psychologically incapacitated to comply with

essential marital obligations;6. Incestuous marriages; and

7. Void marriages by reason

of public policy.

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Exceptions to the Lex Celebrationes Rule (Art. 26,

FC) – cont.:Void Marriages on grounds of public policy (Art

38, FC)1. Between collateral blood relatives, whether

legitimate or illegitimate up to the fourth

civil degree;2. Between step-parents and step-children;

3. Between parents-in-law and children-in-law;

4. Between the adopting parent and the

adopted child5. Between the surviving spouse of the

adopting parent and the adopted child;

6. Between the surviving spouse of the

adopted child and the adopter;

7. Between the adopted child and the

legitimate child of the adopter;

8. Between adopted children of the same

adopter;9. Between parties where one, with the

intention to marry the other, killed the other

person’s spouse of his or her own spouse

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Intrinsic validity of marriage refers to legal capacity to enter into marriage, and free consent. In mixed marriages, the law that governs the substantive validity of marriage is the national or domiciliary

law (lex nationalii/domicilii) of the parties.”

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Sottomayor v. De Barros (1877,

England) The parties were

Portuguese subjects who were first

cousins but domiciled and residing

in England. Before they reached

18, they were married in England.

While English law allows marriage

between first cousins, Portuguese

law, deems them incestuous and

therefore void unless a Papal

dispensation is previously

obtained. The woman later sought

nullification of the marriage.

Applying the lex nationalii

principle, the Court declared the

marriage void even as it recognized that such marriage

would be valid in England.

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In Re Dalip Singh BIR’s

Estate (California, 1948).

Singh, an Indian, died intestate in California. Two

women alleged to have been

legally wedded to him for

over 50 years in accordance

with the law and custom of

the Jat community. The Court recognized the polygamous marriage and

recognized the two as heirs

of the decedent.

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Divorce presents a conflicts of law problem if

the parties nationality or domicile is connected to another state. In such an

instance, the recognition of a divorce decree, the division of marital property, custody of children, and support will

be ascertained following COL principles.

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Jurisdiction, following the most significant relationship rule, is based on domicile of one of the parties or matrimonial domicile.

The grounds for divorce are dictated by the lex fori.

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The Philippines does not recognize divorce, and one

obtained abroad by Filipinos are not recognized

in the Philippines (Art. 17,

CC). However, in mixed marriages where the foreigner spouse obtains divorce will be recognized

here. This, to remedy the

uneven status between the

spouses in a mixed marriage.

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In Tenchavez v. Escano (1965), the parties were both Filipinos who, after marriage, did not live together as husband and wife. Thereafter, the wife left for the United States and – while still a Filipino -- successfully procured a divorce decree in Nevada. She later re-married. The husband sued for legal separation and damages which the Court granted.

Adverting to Art. 17 of the Civil Code, the Court held that divorce is antithetical to public policy, and would only favor the wealthy who can afford to travel and obtain divorce abroad.

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In Lavadia v. Heirs of Luna (2014), Lavadia married Atty. Luna in the Dominican Republic after he obtained a divorce in that jurisdiction from his first wife. Atty. Luna likewise obtained an approval of an agreement for the dissolution of his property with his first wife in DR. Thereafter, he and Lavadia lived together as husband and wife.

Upon Atty. Luna’s death, Lavadia sued his heirs who have excluded her from partition of his estate. The Court, in denying her petition: (a) refused to recognize the divorce in DR; (b) declared Luna’s marriage to his first wife subsisting until his death and his marriage to Lavadia bigamous; and (3) concluded Lavadia was unable to prove her co-ownership rights over assets in the estate.

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In Van Dorn v. Romillo (1985), Van Dorn, then Filipino, and Upton, an American, were married in Hong Kong and later obtained a divorce in the US. Van Dorn later remarried. In a petition, Upton moved for accounting and management of their conjugal assets.

The Court held that Upton is estopped from asserting their marriage which was already dissolved by the divorce. It added that while Filipinos under Art. 15, CC are covered by the policy of absolute divorce, foreigners are not. This will result in an inequituous situation, hence the need to release the Fil. spouse from marriage bonds where the alien spouse obtains the divorce.

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In San Luis v. San Luis (2007), the third wife of the former governor of Laguna petitioned for letters administration of his estate. His children by the first marriage opposed contending that petitioner married their father during the subsistence of his second marriage to a foreigner. Petitioner however submitted a foreign divorce decree obtained by the foreigner against the decedent. The lower court denied the letters administration.

The Court held that petitioner may have a personality to file the petition after she proves authenticated copies of the decree. In any case, she has personality to file the petition as she may have an interest as a limited co-owner, in case of the decedent’s incapacity to marry her.

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In Bayot v. CA (2008), Bayot, an American citizen, married a Filipino national and thereafter obtained a divorce in Dominican Republic and court approval of the dissolution of their common properties. Subsequently, she filed a petition for nullity of marriage here in the Philippines with application for support pendente lite. The lower court granted her support pendente lite which the appellate court reversed and declared her without personality to sue.

At the SC, the Court held that the divorce she obtained abroad could be given effect here, adverting to 3 legal premises, which are:

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Bayot v. CA (2008), cont. –First, a divorce obtained abroad by an alien married to a Philippine national may be recognized in the Philippines, provided the decree of divorce is valid according to the national law of the foreigner.Second, the reckoning point is not the citizenship of the divorcing parties at birth or at the time of marriage, but their citizenship at the time a valid divorce is obtained abroad. And third, an absolute divorce secured by a Filipino married to another Filipino is contrary to our concept of public policy and morality and shall not be recognized in this jurisdiction.

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In Dacasin v. Dacasin (2010), the American husband and the Filipino wife obtained a divorce in an Illinois court which granted the mother sole custody over the child. Subsequently, they entered into an agreement for joint custody of the child who was then below 7 years of age.

Later, the mother refused custody to the father who sued in the Philippines for enforcement of their post-divorce agreement. The lower court refused jurisdiction on the ground that the Illinois court retained jurisdiction. The SC modified, pointing out that the subject of the petition was the post divorce agreement. Nevertheless, the SC held the agreement enforceable being contrary to the FC proviso which grants the mother sole custody of a child but remanded the case since the child was, at the time of the petition, already 15 years of age.

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In Fujiki v. Marinay (2013), Fujiki married a Filipino but was compelled to leave her in the Philippines after her parents refused to recognize their marriage. Thereafter, the Filipina married a Japanese and lived in Japan. When F learned of the abusive relationship, he helped her obtain a divorce decree in Japan. Thereafter, he filed in RP a petition for recognition of divorce and annotation of the decree in the certificate of 2nd marriage of his wife. The lower court dismissed outright for non-compliance with the Rules on Declaration of Nullity of Marriage, and of his lack of personality to sue, not being a party to the marriage under question.

Fujiki (cont)

On direct appeal to the SC, the SC held that: (a) the Rules on Declaration of Void

and Voidable Marriages do not apply to a petition for recognition of divorce;

(b) the spouse in a first subsisting marriage has capacity to sue either for nullity or recognition of foreign divorce; and

(c) While a marriage cannot be collaterally attacked through cancellation of entries in a civil registry, this rule does not apply for correction of civil entries arising from a divorce obtained by a foreigner abroad, especially where the basis is bigamy.

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In Ablaza v. Republic (2010), the brother of the decedent husband brought an action to nullify his brother’s marriage celebrated in 1949 on the ground of absence of a marriage license. The lower court held him without personality to sue, not being a party to the marriage, as required under the Rule on the Declaration of Nullity of Void Marriages. On appeal, the SC reversed holding that the Rule only applies to proceedings commenced after 15 March 2003, and excludes1. Those commenced before March 15, 2003, the effectivity date of A.M. No. 02-11-10-SC; and2. Those filed vis-à-vis marriages celebrated during the effectivity of the Civil Code and, those celebrated under the regime of the Family Code prior to March 15, 2003.