PRIL notes: Continuation of Choice of law in Family Relations

1. DIVORCE AND SEPARATION

DIVORCE

1. Absolute: termination of the legal relationship between spouses by an act of law
2. Relative divorce/ legal separation: separation from bead and board

-does not effect the dissolution of the marital ties

-relieve spouses of duty of living w/ each other

-not necessarily affect economic rights and duties: court may order one to provide for the support of the other or of their common children (so Court should have personal jurisdiction over respondent spouse + property sought to be affected)

PRIL problems:

• Recognition of the divorce decree
• Division of marital property
• Claim to custody of the children
• Provisions for the support of a dependent spouse and children

DIVORCE JURISDICTION: domicile of one of the parties (Matrimonial domicile): reasons why:

-divorce, being a matter of concern of the state, should be controlled by the law of the place w/ w/c the person is most intimately concerned, the place where he dwelleth and hath his home

-substantial contact w/ relationship

HAGUE CONVENTION RELATING TO DIVORCE AND SEPARATION of 1902 -granting of divorce/separation must comply w/:

• the national law of the spouses
• law of the place where the application for divorce is made

Codigo Bustamante & Siamese Law:

Right to separation/divorce: national law

Grounds for divorce: law of the forum provided spouses are domiciled there

GROUNDS FOR DIVORCE: lex fori (determined by the law of the forum)

1. DIVORCE DECREES OBTAINED BY FILIPINOS

-not valid

-not recognized in RP

-BUT if it is between Filipino + alien: Alien can obtain divorce if susceptible to it (ONLY THE ALIEN CAN OBTAIN THE DIVORCE, NOT THE FILIPINO)

Effect: Alien, as well as Filipino, can remarry

- ART26, FC

- partial recognition of absolute divorce in RP

-remedies the situation wherein even if Filipino is already divorced from Alien spouse and alien spouse has already remarried, Filipino still remains married to the said alien spouse under RP law

FOR ADDITIONAL CASES SUMMARIES, CLICK ON THE FF LINK (but once reposted on Blogger, these links would need to be rechecked)

• San Luis v. San Luis
• Republic v. Obrecido

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TENCHAVEZ V. ESCANO (1965)

Short summary: Former Filipina obtained divorce while still a Filipina then obtained Nevadan citizenship, remarried. Now being sued for legal separation and damages, which are both granted

Facts:

-Vicenta Escano and Pastor Tenchavez were both married w/o parental knowledge

-marriage registered w/ local civil register

-marriage lacked authority from Archbishop or parish priest but no remarriage because father f Escano did not consent to remarriage

-Tenchavez returned to Manila. Escano lived with parents, left for US in 1950 and sued for divorce because of "extreme mental cruelty" which was granted by Nevadan court, ruled final and absolute in 1950

-1951: Escano's parents sought annulment of marriage w/ Archbishop of Cebu

-1954: Escano sought Papal dispensation of her marriage

-1954: Escano married an American in Nevada

-1955: Tenchavez filed complaint for legal separation and damages vs. Escano

Answer: Nevada Court decree of divorce was valid, so is her 2nd marriage

-1958: Escano obtained American citizenship

LC: no legal separation, but Tenchavez do not need to support Escano

WON Tenchavez and Escano were already divorced by virtue of the Nevada Court decree? NO

-at the time the divorce was issued, Escano was still a Filipino citizen, then subject of RP Law which does not admit absolute divorce (only legal separation)

-Divorce is against public policy so by virtue of Art17, NCC: the foreign decree of absolute divorce cannot render ineffective prohibitive RP laws

WON Tenchavez entitled to Damages? YES

-Refusal to perform wifely duties, denial of consortium, desertion of husband constitutes wrong + adultery

Summary:

1. Foreign divorce between Filipino citizens not recognized
2. Remarriage of divorced wife and cohabitation with person other than lawful husband is ground for legal separation
3. Desertion and securing of individual divorce decree entitles one to damages
4. An action for alienation of affections against parents does not lie if NO Malice/ unworthy motives

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VAN DORN V. ROMILLO

Short Summary: Filipino wife and foreigner husband had properties in RP but got divorced, acknowledging that they had no community property. Foreigner husband now sues wife for accounting of their conjugal property in RP.  SC held that since they are already divorced, no community property. Unfair if Filipina is still bound to someone who does not consider her his wife. :p

Facts:

ALICE (RP Citizen) and RICHARD (US Citizen):

-married in HK

-resided in RP as husband and wife for 10 years

-divorced in US

-afterwards, Alice married Theodore Van Dorn in Nevada

RICHARD sued Alice for accounting of conjugal property and to manage conjugal property (the Galleon Shop in Ermita)

-MTD by Alice: there was a previous judgment of divorce by the Nevada court ruling that they had no community property

--DENIED: (1) property invoked is located in RP; (2) Divorce decree has no bearing in this case

WON DIVORCE IS RECOGNIZED AS VALID IN RP? It depends…But here it was recognized.

-though it is true that DIVORCE is against public policy in RP, but absolute divorce is just not applicable to Filipino nationals but NOT on aliens who may obtain divorce abroad validly under their national law. If such was the case, divorce would be recognized in RP.

-In NEVADA LAW: Divorce dissolves the marriage. The marriage tie, when thus severed as to one party, ceases to bind either. …

-Thus, pursuant to RICHARD's national law, HE IS NO LONGER THE HUSBAND OF ALICE. He would have no standing to sue in the case as Alice's husband entitled to exercise control over the conjugal estate.

-To maintain that under RP laws, American Richard should still be considered married to Alice cannot be considered just. Alice should not be discriminated against in her won country if the ends of justice are to be served.

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PILAPIL V. IBAY-SOMERA

Short summary: After obtaining a divorce decree in Germany, German ex-husband of Filipina wife sued the latter for adultery. The court held that since they were already divorced, there's no marital relationship to protect and the ex-husband has no COA.

Facts:

-IMELDA MANALAYSAY-PILAPIL (fil) and ERICH GEILING (german) were married in Germany, stayed in RP

-marital discord >>> separation de facto

-GEILING initiated divorce proceedings in GERMANY. Pending decision of German courts, Imelda filed action for legal separation, support and separation of property.

-GERMAN COURT granted DIVORCE.

-Afterwards, GEILING sued IMELDA for ADULTERY

…Imelda had affairs w/ 2 other men during their marriage

>>>initially dismissed for lack of sufficient evidence

>>>Reconsidered, refiled

-IMELDA filed MOTION TO QUASH: no jurisdiction, as the complainant is not the "OFFENDED SPOUSE" there being a final decree of divorce already

>>denied. This case is the special civil action for the annulment of the order denying the motion to quash.

WON COURT HAS JURIDICTION OF THE ADULTERY CASE, IT BEING THAT FOREIGNER EX-HUSBAND ALREADY OBTAINED A FINAL DECREE IN HIS COUNTRY GRANTING THEIR DIVORCE? NO

-in adultery charge, status of the complainant as the "OFFENDED SPOUSE" important

-offended spouse: still married to accused at the time of filing of complaint

-since here, already divorced, then not the offended spouse which the law requires

-ON ALLEGATION THAT HE DID NOT KNOW ABOUT THE AFFAIRS WHEN THEY WERE STILL MARRIED SO HE COULD NOT HAVE FILED IT THEN: no matter.

>No longer a family nor marriage vows to protect once a dissolution of marriage is decreed.

>No danger of introducing spurious heirs into the family (rationale for adultery law)

-ON ARGUMENT THAT RPC INTENDED TO PUNISH ADULTERY ALTHOUGH THE MARRIAGE IS AFTERWARDS DECLARED VOID: can't file adultery charge after divorce, which declares the marriage void ab initio. The case used to support such argument contemplated a situation when the adultery charge was filed before a judicial declaration for nullity ab inition of the marriage was rendered (or in this case, if it was filed before the judicial decree of divorce was final).

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QUITA V. COURT OF APPEALS

Short summary: A Filipina wife divorced her Filipino husband then remarried twice. When her former husband (who also remarried and had kids) died, she now claims a share from his estate, claiming that the divorce decree she obtained is not valid as she is a Filipino national. Court held that the 2nd wife of the decedent was not the surviving spouse because they were married even before the divorce decree was obtained by the 1st wife.  The court remanded the case just to determine WON the 1st wife was already an US citizen when divorce decree granted.

Facts:

-Fe Quita married Arturo Padlan (both Filipinos) were married May 1941.

-Arturo Padlan married Blandina Dandad April 1947.

-Fe Quita obtained a divorce decree in California in July 1954. She remarried 2x

-1972: Arturo died intestate, leaving his 2nd family and Fe

WHO WAS THE SURVIVING SPOUSE? FE OR BLANDINA? Secret!

-Blandina's side implied that Fe was no longer a Filipino citizen when she acquired a divorce decree. However, not threshed out during the trial so remand the case (the TC merely said that since divorce is not valid in RP, divorce decree was also not valid)

-However, as the marriage between Blandina and Arturo was contracted when the 1st marriage between Arturo and Fe was still subsisting, it is considered bigamous and thus void. Blandina is clearly not the surviving spouse.

-but as the children of Blandina were all recognized by Arturo as his children, these children are assured of shares in the intestate estate

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2. VALIDITY OF FOREIGN DIVORCE BETWEEN FOREIGNERS

HAGUE CONVENTION ON THE RECOGNITION OF DIVORCE AND LEGAL SEPARATION

: when foreign divorce is recognized by a contracting state:

1. Respondent/petitioner had habitual residence in that state
2. Both spouses were nationals of that state
3. Petitioner national + habitual resident

In US: full faith and credit clause of consti:

>if BOTH Souses domiciled in 1 state, can recognize divorce decree by a sister state

>if only 1 spouse: additional conditions

>if divorce decree by a foreign country: Not covered but would recognize divorce provided that the parties are domiciled in that State

IN RP: no law recognizing foreign divorce but under international comity, it is recognized as long as not violate strongly held policy of RP

3. ANNULMENT AND DECLARATION OF NULLITY

-affect STATUS & DOMESTIC RELATIONS of parties

DIVORCE	ANNULMENT/NULLITY
Ground Occurs after marriage celebration	Defects are present at the time of celebration
Lex fori	On validity of marriage

CHOICE OF LAW APPROACH: grounds for annulment and nullity

TRADITIONAL	POLICY-CENTERED
Lex loci celebrationis	Law of the state of marital domicile - considered to have the most significant interest in the status of the parties

WHO MAY CLAIM JURISDICTION

*place of celebration of marriage

*place of marital domicile

WHEALTON v. WHEALTON: even if court acquires only personal jurisdiction (not the place of celebration nor the place of marital domicile?), the court may grant annulment decree

How all these concepts would come about: example ni ma'am:

G & B are both 18 years old

They are domiciliaries of State A

They get married in State B, w/o parental consent

B (later H - Husband) resides in State C.

Jurisdiction: States A, B, and C can all claim jurisdiction

Choice-of-law:

State A (domicile): people of age can marry

State B (place of celebration of marriage): parental consent needed for marriage to be valid

State C: (place of residence of H): actually irrelevant

-argue Whealton? Not applicable. The court there just acquired jurisdiction but did not use it's own law.

4. PARENTAL RELATIONS

LEGITIMACY OF A CHILD

-depends on the personal law of the parents

-usu: personal law of the father - and this is shared by many for "preservation of the stability of the family"

INCLUDES
* Paternity -Civil status of the father/mother w/ respect to the child begotten by him (or her)

*Filiation - status of the child in relation to his parents

IN RP

Legitimacy of child

-same nationality: national law of parents

-different nationalities: national law of the father (Art 15, NCC)

DETERMINATION OF LEGITIMACY OF A CHILD

Art. 163 - 165:

ART 163: TYPES OF FILIATION

1. By Nature: legitimate or illegitimate
2. By adoption

ART 162: KINDS OF LEGITIMATE CHILDREN

1. CONCEIVED AND BORN NATURALLY

-during the marriage

2. CONCEIVED AS A RESULT OF ARTIFICIAL INSEMINATION

Who's sperm:

• Husband
• Donor
• Both

Conditions:

1. Both H & W should execute and sign a WRITTEN INSTRUMENT authorizing or ratifying the insemination
2. The instrument should be made BEFORE the birth of the child
3. The instrument should be recorded in the Civil Registry together w/ the birth certificate of the child

ART 165: ILLEGITIMATE CHILDREN

-born outside a valid marriage

Personal law of the child

Legitimate: governed by the personal law of the father

Illegitimate: governed by the personal law of the mother

PRIL problem

Common law: usually children born w/n lawful wedlock are legitimate

-modified:

• Offspring of invalid marriages may be considered legitimate
• Offspring originally born illegitimate may be legitimated - subsequent marriage by parents or recognition on the part of either or both

-problem: if parents have different personal laws, different rules govern as regards legitimacy of the child

2ND RESTATEMENT:

Sec 287: LAWS GOVERNING LEGITIMACY

child legitimate if considered such under local law of the state where either

1. Parent domiciled when child's legitimacy is claimed to have been created
2. Child domiciled when parent acknowledged child as his own

Sec 288: INCIDENTS OF LEGITIMACY CREATED BY FOREIGN LAW

-same treatment by forum - forum recognizes the status recognized by the foreign law

PARENTAL AUTHORITY OVER THE CHILD

-derived from Roman concept patria potestas

-usually personal law of father determines rights and duties of parents and children

-in RP: ART21, FC: JOINT PARENTAL AUTHORITY by mother and father

Scope of parental authority:

• Care for and rearign of the children for civic consciousness…
• Action a parent may file vs. other parent for custody
• Requirements for parental consent to child's marriage
• Discipline and chastisement - though restrained by law and practices

5. ADOPTION

Def: the act by which relations of paternity and affiliation are recognized as legally existing between persons not so related by nature

-judicial act which creates between 2 persons a relationship similar to that which results from legitimate paternity and affiliation

-in GREEK, ROMAN and JAPANESE CULTURES: means of perpetuating the ancestor's cult threatened by birth extinction - pamparami ng lahi! So usually adopted a male

Goals of adoption

B4: supply solace to those who had no children so that the void which exsited in childless homes may be filed

NOW: extend to orphan or indigent child  the protection of society in the person of adopter

PROCESS of ADOPTION: governed by Lex domicili

Problem: which would exercise jurisdiction? What law would be applied?

GR: Child's personal law determine validity of adoption, regardless of jurisdiction

-why: main object is to provide for the welfare of the child, ensure that his interest is well-protected

-problem: when personal law does not create substantial contacts with child (law of domicile but child is merely constructively domiciled in that place or law of nationality but the child does not actually reside in the state considering him a national), thus the court in that state whose law is applicable cannot competently protect the interests of the child

--so use Adopter's personal law

WON an Alien may adopt a child in the Philippines?

GR: NO

-different family orientation, cultures, customs, and traditions which could pose a problem for Filipino children to adapt themselves to a completely strange environment

X: A184: aliens w/ some relationship w/ adopted child

*RA 8552: Domestic Adoption Act of 1998

• ArtIII, Sec7b: aliens can adopt, provided:
• Resided in RP for at least 3 consecutive years prior to time of filing application for adoption
• Maintains residency in RP until adoption decree issued
• Submission of a certification from the alien's country w/c
• attests to his/her legal capacity to adopt
• States that their law allows adopted children into the adopter's country

*these requirements may be waived when child to be adopted is a relative by consanguinity or affinity of the adopter/spouse of the adopter

*RA 8043: governs adoption by other aliens

-before this law, adoption was practiced pursuant to Rules and regulations on Foreign Adoption, implementing Child and Youth Welfare Code…

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RP V. CA (1993)

Short Summary: American and his Filipina wife wanted to adopt the nephews and niece of Filipina wife. However, court held that since the law requires joint adoption when one of the spouses adopting is an alien, and the said alien should thus also be qualified to adopt, and here the alien is not qualified to adopt, then the adoption decree was not issued.

Facts

-James Anthony Hughes (American) & Lenita Mabuhay Hughes (Filipina, later naturalized as US Citizen) are married

-filed petition in 1990 to adopt 3 kids: Ma. Cecilia, Neil, Mario

• All lived w/ them even prior to filing of petition
• All are minors
• The minors as well as parents gave consent to the adoption

WON THE SPS COULD ADOPT THE CHILDREN? NO

1.  JAMES CAN'T ADOPT

-under ART 184, FC, James being an alien cannot adopt and he is not under the exceptions provided in the law

2. LENITA CAN'T ADOPT TOO

-she is qualified under Art 184,3(a), i.e. a former Filipino citizen who seeks to adopt a relative by consanguinity

-BUT Art 185 qualifies 184, in that she and her husband must jointly adopt, the kids not being either of their legitimate or illegitimate children (this is as opposed to the old law which uses the word "may" instead of "must)

3. JAMES CAN'T BE A NOMINAL PARTY: Adoption creates a status that is closely assimilated to the legitimate paternity and filiation w/ corresponding rights and duties that necessarily flow from adoption:
• Exercise of parental authority
• Use of surname of adopter by adoptee
• Support
• Successional rights

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EFFECTS OF ADOPTION

-governed by the law w/c created the adoption

-RP Courts: Adoption relates to civil right, does not affect changes in the political rights of the adopted child including child's eligibility to acquire citizenship of adopter

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UGGI LINDAMAND THERKELSEN V REPUBLIC

Short Summary: Danish Husband and Filipina Wife seek to adopt (though dapat di ba si Danish husband lang) the Filipina wife's natural child by a father who abandoned them after the child's birth. The adoption petition was DENIED because accdg to the JDRC, an alien may only adopt a Filipino when the adoption would make the Filipino minor a citizen of the adopter's country, i.e. if the child would become Danish. Court reversed, granted the petition for adoption, ruling that adoption is civil law, not political law.

Facts:

-UGGI LINDAMAND THERKELSEN (Danish) and ERLINDA BLANCAFLOR (Filipina) were married. They wanted to adopt CHARLES BLANCAFLOR WEEKS, natural child of Erlinda with Charles Joseph Weeks who abandoned them after Charles was born.

-JDRC denied petition: an alien may only adopt a Filipino when the adoption would make the Filipino minor a citizen of the adopter's country, i.e. if the child would become Danish.

WON ACQUISITION OF THE CITIZENSHIP OF THE ADOPTER IS NECESSARY TO GRANT ADOPTION? NO

-civil code (ART 335) only required 2 disqualifications:

1. Non-residents
2. Residents but RP has broken diplomatic relations with their government

-Citizenship of the adopter is a matter political and not civil in nature: not w/n the province of civil law to determine how or when citizenship in a foreign state is to be acquired

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NG HIAN V. COLLECTOR

Short summary:  oh no putol...