Nationality Principle and Absolute Divorces in the Philippines

 

Persons 9: Nationality Principle and Absolute Divorces in the Philippines (lexinmotion)

Article 15 provides that, “Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.”

Art. 15 of the Civil Code contains the nationality principle under conflict of laws.

When it comes to family rights and duties, the most basic example is Art. 194 of the Family Code which provides that, “Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation in keeping with the financial capacity of the family.”

“The education of the person entitled to be supported referred to in the preceding paragraph shall include his school or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from the place of work.”

Art. 195, on the other hand, imposes the duties enumerated under Art. 194 of the Family Code upon the spouses, legitimate ascendants and descendants and parents to their legitimate and illegitimate children.

Correlating Art. 15 of the Civil Code and Article 194 and 195 of the Family Code, we can come to the conclusion that:

1. The family rights and duties of a person, is determined by his national law;
2. Support includes food, shelter, clothing, school, medical expenses and transportation.

 

File an action for support. There is no fixed amount set forth by law but the guidelines are always based on the financial capacity of the person obliged to support, and based on the needs of the person who is entitled to support. The judgment for support never achieves finality. It has to change from time to time.

Question: Would your answer be the same if Y is not a Filipino but instead a Dutch? Would he still be liable to support his Filipina wife?

 

In the case of Norma del Socorro v. Ernst Johan Brinkman Van Wilsem, the Dutchman in this case, argued that he had no obligations to support their minor child, under the law of Netherlands.

To this, the Supreme Court applied the doctrine of processual presumption. The SC ruled that, “in view of respondents’ failure to prove the national law of the Netherlands in his favor, the doctrine of processual presumption shall govern. Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law. Thus, since the law of the Netherlands as regards the obligation to support has not been properly pleaded and proved in the instant case, it is presumed to be the same with Philippine law, which enforces the obligation of parents to support their children and penalizes the noncompliance therewith.”

“Status” in Art. 15 means the sum total of a person’s rights, duties and capacities. An example of this in civil law is paternity. Paternity is a status of being a parent to a child.

Under the laws on wills and succession, a parent, by the status of paternity, has the right and capacity to succeed from his child.

Under our laws, the status of a person is inalienable, imprescriptible, and cannot be the subject of compromise. No matter how much you hate your child or your future children, hinding-hindi mo maaalis sa kanila na anak mo sila. That is the essence of the status of a person.

Another status is affiliation (relationship or status that one person has of being a child to a parent). 

Capacity

Legal capacity is divided into two parts.

1. Juridical capacity
2. Capacity to act

Art. 37 of the Civil Code provides that juridical capacity is the fitness to be the subject of legal relations. It is inherent in every natural person and it is lost only through death.

Artificial persons (or persons whose personality is created by law like corporations, city government and partnerships) begin to have juridical personality on the date they are created. That’s the issuance of the certificate of registration and the articles of incorporation.

We have the capacity to act, the second half of the legal capacity under the Civil Code. Capacity to act is the active aspect of legal capacity. It is the ability to make actions with legally binding consequences.

Unlike juridical capacity, capacity to act exists in varying degrees. According to Professor Balane, no person has 100 percent capacity to act, but we can come very, very close to it.

Example: unborn fetus (An unborn child can have the right to succeed. The capacity to act of an unborn baby is very, very close to zero but it is not zero. As the child grows older, pwede siyang bumili ng suka at patis, that is a contract of sale and that sale is valid subject to certain conditions.)

Aliens in the Philippines have the capacity to enter into contracts of lease and employment but cannot, at least, at the time of publication own congressional franchises for public utilities. Towards the end of the spectrum, we have regular persons, Filipinos, with full capacity to act. We can own land, buy houses or sell them if we want to. The capacity to contract a valid marriage is also part of the capacity to act. Combining the ability to be the subject of legal relations and the capacity to act on these legal relations, we now have legal capacity.

Applying Art. 15, our legal capacity is always determined by our national law (Philippine law).

Theories on personal law:

1. Nationality principle. Family rights and duties, the status, condition and the capacity of a person is determined by his or her national law.
2. Domiciliary principle. Instead of the national law, we follow the law wherever the person may be domiciled.

In the Philippines, we follow the nationality principle because of the express provision of Art. 15.

Under the domiciliary principle, the family rights and duties of a person, his status, condition and capacity are determined by the law of his domicile (the place of permanent residence)

Domicile refers to the place where a person currently resides. In Romualdez vs. Regional Trial Court, and later on in Macalintal vs. Comelec, the SC teaches us that, “Domicile denotes a fixed, permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return.” it is the combination of two elements, animus manendi, or the intent to stay, and animus revertendi, or the intent to return. It implies an element of permanence.

Art. 26 of the Family Code provides that, “All marriages solemnized outside the Philippines, in accordance with laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those under Art. 35(1), (4), (5), (6), 36, 37, and 38.

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 likewise have the capacity to remarry under Philippine law.”

Personal appearance in your wedding ceremony is not an essential requisite under Art. 2 of the Family Code.

We have no law on absolute divorces. The only way a marriage is dissolved is through death, through the declaration of the nullity of marriage or under annulment under Art. 36 of the Family Code.

Rules when it comes to divorces in the Philippines:

1. Between a Filipino and a Filipina who marry here in the Philippines, there can be no divorce. (at least at the time of publication)
2. A foreigner and a Filipina who marry in the Philippines, but obtain the decree of divorce abroad, are divorced according to Philippine law, so long as the divorce decree is recognized in the Philippines.
3. In order for the Filipino spouse to marry again, the divorce decree must necessarily capacitate him or her to marry again.
4. The existence of the divorce decree and the foreign law on divorce, in order for them to be given recognition in the Philippines, must be pleaded and proved in accordance with our laws of evidence.
5. It is no longer important if the divorce decree was obtained by the foreigner, by the Filipino spouse or both.

The last of these rules was given by the SC in the case of Minoro Takahashi and Juliet Morania vs. Republic of the Philippines. This case was decided on Dec. 5, 2019.