P4: Choice of law problems; CXII: Choice of law in Family Relations

Intro

*Mobility of people led to transactions and relations which are conneted to more than 1 legal system, leading to interstate or international families

Legal consequences:

*validity of marriage

*personal and property relations between parties

*status and rights of children

Family Law

-reflects strong politicies of the sate anchored on values and mores highly held by its society

-one of the most complicated and sensitive areas to be dealt with in PRIL

1. MARRIAGE

Art1, FC: Marriage defined

-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 stipulation,

Except that marriage settlements may fix the property relations during the marriage within limits provided by this Code

Art15, NCC: LEX NATIONALII governs questions of:

• Family rights
• Duties
• Status
• Conditions
• Capacity

AS A CONTRACT: a mere declaration by the contracting parties

…in the presence of a solemnizing officer and 2 witnesses of legal age

-that they take each other as husband and wife

AS A SPECIAL CONTRACT:

(1) entered by a man and a woman

(2) contracting parties must be at least 18 years of age

(3) solemnized by a person specially authorized by law

(4) a permanent union

unless one of the parties dies

Or marriage is annulled or declared void in special circumstances

(5) it cannot be abrogated, amended or terminated by one or both parties at will

(6) the nature and consequences as well as the incidents are governed by law and not subject to stipulation by the parties (will of the parties not paramount)

(7) violation of marital obligations may give rise to penal or civil sanctions (unlike ordinary contracts, which at most could lead to action for damages)

1. PHILIPPINE POLICY ON MARRIAGE AND THE FAMILY

ArtXV, Sec2, 1987 Consti: Marriage as an inviolable social institution is the foundation of the family and shall be protected by the state.

Art220, NCC: Presumption of validity of marriage

"In case of doubt,

All presumptions favor the solidarity of the family.

Thus every intendment of law or facts leans towad the

• Validity of marriage
• The indissolubility of marriage bonds
• The legitimacy of children
• The community of property during marriage
• The authority of parents over their children
• And the validity of defense for any member of the family in case of unlawful aggression

Highlight:

• Solidarity of the family
• Importance of ffamily
• Paramount interest of the state in preserving it

2. EXTRINSIC VALIDITY OF MARRIAGE

Extrinsic validity	Intrinsic validity
Lex loci celebrationis/law of the place of celebration (as also mentioned in ART2, HAGUE CONVENTION ON CELEBRATION AND RECOGNITION OF THE VALIDITY OF MARRIAGES) Art26, FC: "all marriages solemnized outside the Philippines 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."	Personal law of the parties
Formalities External conduct required of the parties or 3p necessary to the formation of a legally valid marriage Art3, FC: Formal requirements of marriage: Authority of solemnizing officer Valid marriage license except in cases provided in Chapter 2 Marriage ceremony: Appearance of the contracting parties before the solemnizing officer Personal declaration that they take each other as husband and wife in the presence of not less than 2 witnesses of legal age	Capacity of the parties to marry (see it later)

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ADONG V. CHEONG SENG GEE (1922)

Short summary: The alleged legitimate child of the decedent in an alleged Chinese wedding claimed against the lawfully married wife of the decedent in RP for 23 years

Facts:

-decedent: CHEONG BOO

>native of China

>died intestate in Zamboanga (Aug 1919)

-estate claimed by 2 parties

1. CHEONG SENG GEE

-alleged legitimate child of Cheong Boo with his marriage w/ TAN DIT in China in 1895

-admitted to the country as the son of the deceased

2. MORA ADONG

-lawfully married to CHEONG BOO in 1896 in Basilan

-had 2 daughters with CHEONG BOO, PAYANG & ROSALIA

CFI: Chinese marriage not proven but since CHEONG SEE GEE was admitted to RP as CHEONG BOO's son, then he should have a share in the estate as a natural child (It was also ruled that though the marriage between ADONG and CHEONG BOO was adequately proven, it was conducted in accordance with Moro rituals which are not recognized by RP law so only PAYANG & ROSALIA as natural children could inherit, not ADONG)

-both parties appealed

WON the CHINESE MARRIAGE WAS SUFFICIENTLY PROVEN AND VALID IN RP? NO

-cited SEC IV, Marriage Law (General Order No. 68) = Article 26, FC

-how to establish a valid foreign marriage:

1. Prove existence of foreign law as a question of fact
2. Prove the alleged foreign marriage by convincing evidence

-cited SY JOC LIENG V. ENCARNACION: Chinese marriage in this case was not proven by clear, strong, and unequivocal evidence as to produce a moral conviction of its existence so as to interrupt 40 years of uninterrupted marital life.

-using SY JOC LIENG case, court merely substituted the 40 years with the 23 years in this case.

HELD: Chinese marriage not proven, Moro Marriage acceptable under RP Law (compared to Marriage law in US which was made to accommodate marriages between Indians, Quakers and Mormons) so ADONG would have a share as the legitimate wife, together with the 2 children

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PEOPLE V. MORA DUMPO (1935)

Short Summary: Mora DUMPO was married to Moro HASSAN, then contracted 2nd marriage to SABDAPAL w/o the consent of her father nor of the chief of the tribe to which she belongs. 1st husband sues her for Bigamy

Facts:

-Mora DUMPO married Moro HASSAN in accordance with rites and practices of Mohammedian Religion

-DUMPO allegedly contracted a 2nd marriage w/ SABDAPAL w/o dissolving 1st marriage, lived together as husband and wife

-HASSAN filed BIGAMY case

CFI: DUMPO guilty

-Dumpo appeals: no consent from father for her to get married again so no 2nd marriage to speak of, thus, no bigamy

WON 2nd marriage is valid (thus, DUMPO GUILTY OF BIGAMY)? NO.

-Mohammedian rites NOT taken JN of, as it must be subject to proof in every particular case

-evidence presented:

• Testimony of TAHARI, Imam/Mohammedian Priest authorized to solemnize marriages between Mohammedians:

>consent of either father of the bride or the chief of the tribe to which the bride belongs (in the absence of father's consent) is an INDISPENSABLE REQUISITE FOR THE VALIDITY OF MARRIAGE

>here, not refuted that this requisite was absent + no refutation that such requisite is indeed required

• Moro Jalmani's statement (father of DUMPO) that he did not give consent to the 2nd marriage because he was not informed of it and he would not have given it if he knew, as 1st marriage not yet dissolved

• No tacit consent here vs. categorical statement of Moro Jalmani

H: as the 2nd marriage was not valid (lacks essential requisite of consent of father/tribe chief), no bigamy so DUMPO acquitted

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WONG WOO YU V. VIVO

short summary: Alleged Chinese wife admitted to RP based on the alleged marriage but marriage was conducted by a village leader. Since Chinese law not proven, and applying processual presumption marriage conducted by the village leader is not valid in RP, said marriage is not recognized, thus cannot allow her in RP

Facts

-WONG WOO YU came to RP in 1961 to join her FILIPINO HUSBAND, PERFECTO BLAS

-WONG WOO YU and PERFECTO BLAS were allegedly married in China on 1929 in a ceremony celebrated by a village leader

BSI: on the declaration that she is the wife of a Filipino, she was admitted to RP as a non-quota immigrant

Board of Commissioners: affirmed, later reversed

-reversal: no substantial proof of husband-wife relationship

• Discrepancies in statements of the alleged couple in several investigations conducted

WON WONG WOO YU AND BLAS'S MARRIAGE IS RECOGNIZED IN RP? NO

-no documentary evidence to support the alleged marriage

-many inconsistencies

Legal basis:

-Art 15, NCC: marriage by Blas must follow RP law (laws relating to family rights or to status of persons are binding upon RP citizens even though living abroad)

-What are valid marriages in RP (PUBLIC ACT 3412, Section 2): if solemnized by:

• Judge of any court inferior to SC
• Justice of peace
• Priest or minister of the gospel of any denomination duly registered in Philippine Library and Museum

-on Article 71, NCC: marriage contracted outside RP which is valid under the law of the country in which it was celebrated is also valid in RP

>>> however, no proof shown that the said marriage is valid in CHINA so this rule cannot be applied to make such marriage validly recognized in RP

>>>if apply processual presumption, RP laws does not allow marriage to be celebrated by a village leader so still not valid

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APT V. APT

Short Summary: marriage by proxy celebrated in Argentina but the wife was in England (where such is not allowed). Wife not assails the said marriage but the marriage was held to be valid

Facts:

-both are German Nationals of Jewish origins

-husband emigrated to Argentina as a refugee, while wife to England (which is also the wife's domicile)

-as there was war and wife cannot go to Argentina, they held a proxy marriage in 1941 with a proxy representing the wife empowered through a Power of attorney executed before the wedding before a notary public in London wherein the wife named the representative to contract the marriage

-Wife now filed petition for nullity of marriage

Argentina	England
Allows proxy marriages	Does not allow proxy marriages

WON the proxy marriage should be allowed? YES

-as regards marriage, locus regit actum.

-if a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would or would not constitute marriage in the country of domicile of one or other of the spouses

-in this case:

• Contract of marriage celebrated in Buenos Aires
• Ceremony was performed strictly in accordance with law of Argentina
• Celebration of marriage by proxy is a matter of FORM of the ceremony or proceeding
• Not abhorrent to Christian ideas in adoption of proxy marriages
• No public policy issue

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There may be instances where even if the marriage is allowed to be celebrated in accordance with the law of the state (extrinsic requisites all complied with), the marriage is still void for lack of capacity to the parties to contract the marriage (intrinsic requisites) in accordance with their personal laws. This is allowed though because:

Extrinsic validity	Intrinsic validity
Lex loci celebrationis	Lex nationalii

Examples:

CC:

1. Bigamous
2. Polygamous
3. Incestuous

FC (adds):

1. If under aged (below 18)
2. Bigamous/polygamous
3. Subsequent marriage after annulment/declaration of nullity w/o recording in Civil Registry and Registry of properties the JUDGMENT, the partition and distribution of properties of spouses and delivery of children's presumptive legitimes
4. Mistake in identity of contracting parties
5. Psychological incapacity
6. Marriage is incestuous
7. Void by reason of public policy

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3. INTRINSIC VALIDITY OF MARRIAGE

Intrinsic validity:

-capacity/general ability of a person to marry (age, parental consent)

-controlled by personal law

In RP:

1. At least 18 years old
2. Not barred by any impediment to marry each other
3. Consent freely given in the presence of authorized solemnizing officer

MATRIMONIAL CONSENT: parties are not ignorant that the marriage is a permanent union

VOID MARRIAGES ON GROUNDS OF PUBLIC POLICY: ART38, FC:

1. Collateral BLOOD relatives, legit or illegit, up to 4th civil degree (includes 1st cousins…)
2. Step-parents and stepchildren
3. Parents-in-law and children-in-law
4. Adopting parent and adopted child
5. Surviving spouse of adopting parent and adopted child
6. Surviving spose of adopted child and adopter
7. Adopted child and legitimate child of adopter
8. Adopted children of same adopter
9. Between parties where one killed the spouse of the other so that the latter would be his or her spouse

Marriage of 1st cousins

-used to be incestuous and void but now not deemed incestuous BUT STILL VOID for being against public policy

-not considered void in some countries, it's even allowed under the Code of Canon Law of the Catholic Church PROVIDED there's DISPENSATION + it's allowed in the country

-since capacity to marry is governed by lex nationalii in RP + presumption of validity of marriage, if the first cousins who got married are foreigners and their law allows such marriage, then it should be considered valid

HAGUE CONVENTION ON VALIDITY OF MARRIAGE: WHEN STATE ALLOWED TO REFUSE VALIDITY OF MARRIAGE:

1. One of the spouses was already married (unless previous marriage subsequently dissolved or annulled)
2. Spouses are related to one another, by blood or by adoption, in the direct line or as brother or sister
3. One of the spouses has not attained the minimum age required for marriage

nor acquired the necessary dispensation

4. One of the spouses did not have mental capacity to consent
5. One of the spouses did not freely consent to marriage (okay, pikot…)

SOTTOMAYOR V. DE BARROS

Short summary: Portugal first cousins, both under-aged, were married in London (w/o religious ceremony), never consummated marriage, just for the sake of saving the girl's family from bankruptcy. Now girl wants to declare marriage void. Court ruled for her, saying that since Portugal makes marriage between first cousins void, it is void even if they were married in London. Capacity to marry is governed by the personal law.

Facts:

IGNACIA SOTTOMAYOR and GONZALO DE BARROS are

*Portuguese

*domiciled and residing in Portugal

*first cousins (and can't marry each other according to Portugal law, unless they get Papal dispensation)

PORTUGAL LAW	ENGLISH LAW
VOID	VALID

1858: their families went to England

1866: they married (Sottomayor then 14 1/2 years old, De Barros 16) in Registrar's Office in London (no religious ceremony, lived with each other though no consummation until 1872 - 6 years)

1874: Sottomayor petitioned for declaration of invalidity of marriage (was led to believe that their marriage was the only means of preserving her father's property from bankruptcy)

LC: marriage still valid

WON THE MARRIAGE SHOULD EB DECLARED INVALID? YES

*the law of a country where a marriage is solemnized must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted;

But as in other contracts, so in that of marriage, PERSONAL CAPACITY MUST DEPEND ON THE LAW OF THE DOMICILE, and if the laws of any country prohibit its subjects w/n certain degrees of consanguinity from contracting marriages, a stamp of marriage between persons w/n the prohibited degrees as incestuous, this  in our pinion imposes on the subjects of that country a personal incapacity w/c continues to affect them so long as they are domiciled in the country where the law prevails, and renders invalid a marriage between persons, both at the time of their marriage subjects of, and domicled in the country which imposes the restriction wherever such marriage may have been solemnized

(in short: since still domiciled in Portugal, and law of the domicile governs their capacity to marry, and Portugal prohibits such marriages, then their marriages is void)

WON IMPEDIMENT CAN BE REMOVED BY PAPAL DISPENSATION? YES

Portuguese law allows it. Not just mere form but on capacity to marry. BUT NO PAPAL DISPENSATION HERE.

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IN RE MAY'S ESTATE

Short summary: Marriage between Jewish uncle and niece held in Rhode Island where it is allowed, but they stayed in NY where it's not. Mom died, during administration of estate, one of children contested marriage. Court held that marriage valid, respecting Jewish customs.

Facts:

SAM MAY: uncle

FANNIE MAY: Niece by half blood

-both were Jewish

-both were residents of NY, but married in Rhode island, then returned to NY

On marriage (though I think this would be more relevant later):

• They were married by a Jewish rabbi in accordance with Jewish traditions

-lived as husband and wife for 32 years

FANNIE DIED.

-one of 6 children contested that her father was not the surviving spouse of their mother, the marriage never valid in NY (so illegit naman sha…)

SURROGATE COURT: marriage VOID so Sam did not qualify for the letters of administration as surviving spouse

WON THE MARRIAGE IS VOID FOR BEING INCESTUOUS? NO

-here, ruled that the legality of a marriage is determined by the LAW OF THE PLACE WHERE IT IS CELEBRATED (but disregarded capacity to marry - governed by law of domicile)

-VAN VOORHIS V. BRINTNALL: involved a "divorced" husband and 2nd wife, married in Connecticut  where 2nd marriage allowed even if 1st wife still alive.

Connecticut	NY
2nd marriage allowed even if 1st wife (divorced) was still alive	Can't remarry until 1st spouse dies

…H: marriage valid

GR: the rights dependent upon nuptial contracts are to be determined by the lex loci

X:

(1) w/n prohibition of positive law

(2) involves polygamy or incest in a degree regarded as generally w/n prohibition of natural law

IN THIS CASE: GR in Van Voorhis held applicable (not under exceptions - not even incestuous?)

*Review of law:

NY LAW	Rhodes Island Law	Jewish Law
Makes penal (imposes a fine and imprisonment) for marriages between uncle and niece, whether legitimate or illegitimate relatives, and the marriage is void BUT IT DOES NOT EXPRESSLY REGULATE MARRIAGES SOLEMNIZED IN ANOTHER STATE WHERE THE MARRIAGE IS CONSIDERED LEGAL (was allegedly also ruled in Van Voorhis v. Brintnall)	Though incestuous marriages also void, it was qualified in that if the marriage was bet: * Quakers *Friends *Jews +according to their rites, the marriage is good and valid, it should be valid	Allows marriages between uncle and niece

Why the exceptions do not apply:

1. NO POSITIVE LAW in NY: no law declaring invalid marriages contracted in another state where said marriages (though invalid in NY) are valid
2. NOT AGAINST NATURAL LAW:

• They were Jewish
• Kinship was not in the direct ascending or descending line of consanguinity
• Not brothers and sisters

Therefore: good and valid in law, not offensive t the public sense of morality to a degree regarded generally with abhorrence…

DISSENT: DESMOND

-NY has right to declare marital status of its own citizens

-marriages between uncle and niece, though not forbidden in Old Testament, is condemned by public opinion for centuries

-47 (leaving Georgia and Rhode Island as exceptions) makes these marriages void

-Wightman v. Wightman ruled that legislators can rule some marriages void for being incestuous and since NY did, then it should not be denied its efficacy

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Public Policy

Christianity: prohibits

*polygamous

*incestuous marriages (if the general consent of all Christiandom deems it to be such)

Public Policy Escape Device

-an excuse a state may use to deem a marriage void

GR: marriages which are manifestly incompatible w/ the ordre public  of the state of which the parties are nationals may be refused recognition.

X:  the existence or non-existence of the foreign marriage is merely a PRELIMINARY QUESTION that arises incidentally (issue does not profane the mores of the forum - tax, property, succession)

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IN RE DALIP SINGH BIR'S ESTATE (1948)

Facts

-Singh is a native of India

-Died in San Joaquin County, California (1945)

-2 women claim to be his legally wedded wife, both of whom are residents of India

-both wives claim that they were married to Singh in Punjab over 50 years ago

-in Punjab (where they are domiciled), polygamous marriages are allowed

TC: both were Singh's legal spouses, neither marriages dissolved, no proof of which marriage came first

(however, California law only recognizes the 1st wife as the legal widow)

Punjab, India	California
Both are considered widows	Only the 1st wife is considered the legal widow

H: polygamous marriages can be recognized in English law so as to confer on the WIVES the status of a wife for purposes of Section 10 of the British Nationality and Status of Aliens Act or for purposes of succession, and upon the children the status of legitimacy

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Marriages Celebrated by a Consular Officer

ART9, Hague Convention on Validity of Marriages:

marriage celebrated by a diplomatic agent/consular official

…in accordance w/ his state law (State A's)

…shall be considered VALID

…as long as it is not prohibited by the state of celebration (State B)

RP law on Marriages celebrated by Consular officer:

Who can celebrate:

• Consul general
• Consul
• Vice consul

-formal and intrinsic requirements under RP law will have to be followed

Formal:

• Valid marriage license
• Due publication and registration

If 1 party is an Alien:

• Alien should comply with marriage requisites under his national law
• Should submit a certificate of legal capacity to contract marriage issue by his diplomatic or consular office

If it concerns Stateless persons/ refugees: instead of certificate from diplomatic/consular office, submit an affidavit stating the circumstances showing such legal capacity to contract marriage

4. EFFECTS OF MARRIAGES

Personal Relations Between the Spouses

 personal relations

*mutual fidelity

*mutual respect

*cohabitation

*support

*right of wife to use the husband's family name

--governed by NATIONAL LAW

If different nationalities:

GR: national law of husband

X: contrary to law, customs, good morals of the forum

ART 69, FC: Both husband and wife has right to fix family domicile

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DJUMANTAN V. DOMINGO

Facts:

-Filipino married an alien woman in Indonesia

-Filipino husband and Indonesian wife wanted to fix domicile in RP

-(fact not provided in book but may be implied: Indonesian wife is to be deported after expiration of her extended stay here as an alien)

H: Indonesian wife can be deported

-no law guaranteeing aliens married to Filipino citizens the right to be admitted, much less to be given permanent residency in RP

-the fact of marriage by alien to Filipino does not w/draw her from the operation of the immigration laws governing the admission and exclusion of aliens. It does not ipso facto make her a Filipino citizen

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2nd Restatement: Wife who lives w/ her husband has same domicile UNLESS special circumstances of wife make such unreasonable

*critique: gender bias

Property Relations of Spouses

HAGUE CONVENTION ON THE LAW APPLICABLE TO MATRIMONIAL PROPERTY REGIMES:

1. internal law designated by spouses before marriage (prenuptial agreement)
2. If #1 none: internal law of the state in which both spouses fix their 1st habitual residence

In RP: Art 80, FC:

GR: Property relations of spouses governed by RP Law regardless of place of celebration of marriage and their residence (even if they went abroad to celebrate marriage, even if they stayed there)

X:

1. Both spouses are ALIENS
2. Extrinsic validity of contracts: property located outside RP (in State A) + contract executed in state A
3. Extrinsic validity of contracts: property in State A whose laws require different formalities for extrinsic validity of contracts + contract executed in RP

…generally follow lex rei situs (as stated in Article 16, NCC)

…as long as at least 1 of the spouses is Filipino (if both are aliens, then under exception!)

…PRINCIPLE OF IMMUTABILITY: even if the Filipino changed nationality after marriage, property regime will remain unchanged  - in accordance w/ ART7, HAGUE CONVENTION ON MATRIMONIAL PROPERTY REGIMES: the applicable law continues notwithstanding any change of nationality or habitual residence

(sabi ni ma'am until before divorce and separation so eto muna)