Kinds Of Domicile

Transcript

*-*-*-*-*-*-*-*-*-*-*-*-*-**-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* *-*-*-*-*-*-*-*-* -*-* *-*-*-*-*-*-*-*-*-*-*-*-*-*-* *-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* * D. KINDS OF DOMICILE 3 KINDS: 1. Domicile of origin 2. Domicile of choice 3. Constructive domicile -Arthur G. Moody (estate administered by Velilla) is a US Citizen -he came to RP in 1902, engaged in business here -he died in Calcutta in 1931 *DOMICILE OF ORIGIN -person's domicile at birth -legitimate child: follow domicile of father -illegitimate child: follow domicile of mother -he executed a will in RP, bequeathing all his property (bonds and shares of stocks of  Philippine corporations corporations ) to his only sister Ida Palmer, a US Citizen *DOMICILE OF CHOICE/VOLUNTARY DOMICILE  -place freely chosen by a person sui juris (emancipated) -concurrence of: 1. Physical presence in the new place 2. Unqualified intention to make that place one's home -BIR prepared inheritance transfer tax return, paid under protest by the estate protest overruled Moody is non-resident alien so BIR cannot levy on him ...no valid law or regulation of the government of t he Philippines under or by virtue of  which any inheritance tax may be levied, assessed or collected upon transfer, by Domicile of origin Domicile of choice IN RP Staunchest presumption in favor of its continuance, More enduring, Less easily shaken Not lost by mere abandonment an remains until replaced by a domicile of  choice death and succession, of intangible personal properties of a person NOT DOMICILED Acquired upon concurrence of amimo et facto (fact and intention) Deemed extinguished by removal of intent even prior to acquisition of a new domicile >domicile of origin is presumed to have been revived (revival doctrine) critique to reverter/revival doctrine: violates fundamental principle of domicile: a person retains his old domicile until a new domicile of choice is secured and established upon concurrence of fact and intention -applied by US courts when person en route to his domicile of origin 1. NO. Though from Calcutta, he wrote and cabled that he wishes to sell his business in Manila + no intention to live there again, no claim that he had a domicile there (and only stayed there for months) NO. *no evidence as to where in Paris he had any fixed abode that he intended to be his permanent home *no evidence that he acquired any property in Paris Problem in deciding domicile of choice: *degree of permanence of abode -kaya state intention in the negative: as long as there is NO INTENTION to return to the old domicile, a new domicile is created, whether the intention to remain is for the rest of one's life or for an indefinite period or for the time being at least *no evidence that he was engaged in any settled business on his account there *length of time and motive that prompted a person to change his domicile: irrelevant in determining WON a new domicile has been acquired -motive only relevant to gauge the genuineness o f the intent to acquire a new domicile treatment at the Pasteur institute (he did not want to be confined in the Culion Leper  *no evidence to prove the establishment of a legal domicile in Paris *though he stayed in Paris for 3 months, not evidence that he intended to make it his residence: just shows he was a transient in Paris for the purpose of receiving receiving Colony so he was continuously absent from his legal domicile - RP) 2. WON HE ABANDONED HIS DOMICILE IN THE PHILIPPINES? NO. 1|c o n t i n u a t i o n o f D o m i c i l e p l u s s t a r t i n C h o i c e o f L a w i n F a m i l y R e l a t i o n s _ C h a -the "usual residence" of this unfortunate man, whom appellant describes as a  Alleged to be applicable applicable by Wife Wife  Alleged to be applicable applicable by the brothers brothers and and administrator of estate sisters "fugitive" and "outcast", was in Manila where he had lived and toiled for more than a quarter of a century, rather than in any foreign country he visited… there must be deliberate and provable choice of a new domicile, coupled with actual residence in the place chosen, with a declared or  -why relevant? The law of the state in which the decedent had his domicile at the time of death must govern the distribution of his estate provable intent that it should be one's fixed and permanent place of abode, one's home. 1. fact of residence + intention of remaining 2. *-*-*-*-*-*-*-*-*-*-*-*-*-**-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* *-*-*-*-*-*-*-*-* -*-* Critiques to Moody's case: 1. ON intent of Moody to never live in Manila again: Isn't it sufficient to establish animo non revertendi? 2. WON justified to dwelve into motive of not wanting to live in Manila (i.e. evade confinement in Leper Colony) 3. On length of stay in Paris (3 months): Isn't it enough to comply with actual residence requirement to acquire new domicile *-*-*-*-*-*-*-*-*-*-*-*-*-**-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* *-*-*-*-*-*-*-*-* -*-* one day will be sufficient provided animus  exists 3. abandonment of old domicile + set out for new domicile 4. : Michael White abandoned his residence in West Virginia w intention and purpose not only of not returning to it, but for the expressed purpose of  making a fixed place in the state of Pennsylvan Pennsylvania ia hi s home for an indefinite time *-*-*-*-*-*-*-*-*-*-*-*-*-*-* *-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* * *CONSTRUCTIVE DOMICILE  -domicile assigned by operation of law to persons incapable of choosing their own domicile -Michael White and wife lived in WEST VIRGINIA -he agreed to sell his West Virginia farm to occupy a house in Pennsylvania -White and his wife transferred to the house in Pennsylvan Pennsylvania, ia, but upon arriving there, the place was damp and uncomfortable that his wife felt ill (she had typhoid fever). -White unloaded his household goods, turned loose his livestock in his new farm then returned to their West Virginia house and stayed there -while taking care of his wife in West Virginia, White still went everyday to a. MINORS or INFANTS -follows domicile of their parent: LEGIT: father ILLEGIT: mother AFTER DEATH OF FATHER: mother AFTER DEATH OF FATHER, MOTHER REMARRIES: now, under A212, FC, even after mother remarries, no effect on parental authority so minors still follow domicile of their mother ...BEFORE:Art 328 (1) provides that if widow mother remarries, she loses parental autorithy over her kids) - kids retained the domicile they had before his widowed mother remarried until he voluntarily changed it upon reaching majority age -basis: parental authority Pennsylvania Pennsylvan ia to look after his stock -his wife recovered weeks later but he in turn he caught typhoid fever and died -in the distribution of his estate: wife vs. brothers and sisters West Virginia law Pennsylvani a law b. PERSONS WITH MENTAL DISABILITY (idiot/insane) GR: if with mental disability, cannot acquire domicile of choice because of inhere nt inability to decide where to make his home X: if it is shown that a person with mental disability is capable of understanding his act and its consequences = can acquire domicile of choice, though not competent to enter into all aspects of civil life Pay widow the whole estate after  Wife entitled to one-half only of said estate, payment of debts brothers and sisters would get other half  SPECIAL PROBLEMS INDOMICILE OF CHOICE VIS-A-VIS CONSTRUCTIVE DOMICILE  a. Person under compulsion 2|c o n t i n u a t i o n o f D o m i c i l e p l u s s t a r t i n C h o i c e o f L a w i n F a m i l y R e l a t i o n s _ C h a -no freedom of choice so cannot have domicile of choice e.g. military personnel Prisoners Persons with disabilities who are confined in institutions *-*-*-*-*-*-*-*-*-*-*-*-*-**-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* *-*-*-*-*-*-*-*-* -*-* -Ricardo Caraballo Caraballo is an American citizen + enlisted in US Air Force as staff sergeant *-*-*-*-*-*-*-*-*-*-*-*-*-*-* *-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* * b. Married Women -basis: unity of identity of spouse + gender-based presumption that the identity was determined by the husband so wife follows the husband -today: this is deemed archaic, invidious stereotype, gender-based discrimination = violates EPC -in RP today: Art 69, FC: husband AND wife shall fix the family domicile. In case of  disagreement, Court would decide. No need to follow the other spouse. …but no new case over right of wife to establish her own domicile *-*-*-*-*-*-*-*-*-*-*-*-*-*-* *-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* * -detailed in Clark Air Base in Angeles, Pampanga with his wife -still had no child so they decided to adopt the five-day old Norma Lee Caber, daughter of Mercedes Caber, who they reared since since her birth -Ricardo Caraballo Caraballo filed a petition for adoption of the child …opposed by Provincial and Assistant Fiscal of Pampanga: he is a non -resident alien which is not qualified to adopt under A335, NCC *since Caraballo now lives in Clark because of his assignment as staff sergeant in US  Air Force, his stay in in RP is just temporary temporary and thus, he is a non-resident non-resident who is disqualified disqualifie d to adopt. 1. : it should have been chosen by his f reely and voluntarily -Actual or physical presence or stay of a person in a place, not of his free and voluntary choice and without intent to remain there indefinitely, does not make him a resident of the place. 2. WHY ADOPTION LAW REQUIRES THE ADOPTER TO BE A RESIDENT: looking GO CHEN AND GO LEK V. COLLECTOR OF CUSTOMS OF CEBU (1932) (Chinese wife re-married again. Now she wanted to bring her children from 1st marriage to RP) -Go Tuan and Tan Bon were married, had 2 children, Go Chen and Go Lek -Go Tuan died, Tan Bon remarried another Chinese -Tan Bon and her new husband came to RP, Tan Bon admitted as a wife of a Chinese Merchant -the latter lived in Cebu for the past 8 years. Tan Bon had her eldest son with her in Cebu. -now the 2 Children Lek and Chen aged 20 and 18, was petitioned to join their mother in Cebu -Collector of Customs did not allow them to go to RP WON A CHINESE WIDOW WHO WAS ADMITTED TO AND ACQUIRED A RESIDENCE IN RP AS WIFE OF A CHINESE MERCHANT (2ND HUSBAND) WAS ENTITLED TO BRING INHER MINOR CHILDREN BY 1ST MARRIAGE? NO. 1. A man's domicile is also the domicile of his wife and minor children Ration: he (husband) is duty bound to protech, support and keep them in his company 2. Tan Bon merely entered RP by virtue of the right of her husband. She does not belong to the privileged class. 3. Since Go Chen and Go Lek are not children of the 2nd husband, they are not entitled to enter *-*-*-*-*-*-*-*-*-*-*-*-*-*-* *-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* * after the welfare of a minor to be adopted is placed with safeguards to achieve and insure such welfare. If non-resident, adopter might remove adoptee from the Philippines Philippin es so beyond reach and protection of the country of birth (RP) *-*-*-*-*-*-*-*-*-*-*-*-*-**-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* *-*-*-*-*-*-*-*-* -*-* *recent rulings of US courts on people under compulsion: they could now develop required unqualified intention to establish his permanent abode in such place, i.e., to make the place where he was compelled to stay his domicile of choice -to hold otherwise amounts to curtailment of a constitutionally protected liberty of a person to choose his domicile DE LA VINA V. VILLAREAL AND GEOPANO (1920) (wife filed petition for divorce in her domicile of origin; husband contests venue since she should have followed his domicile) -Geopano, resident of Iloilo, married De La Vina, resident of Negros Oriental -However, De la Vina committed acts of adultery with Ana Calog since 1913, so Geopano was ejected from conjugal home and was compelled to live back in Iloilo. -thereafter, she filed in CFI Iloilo the petition for divorce 3|c o n t i n u a t i o n o f D o m i c i l e p l u s s t a r t i n C h o i c e o f L a w i n F a m i l y R e l a t i o n s _ C h a -De la Vina contested jurisdiction of CFI Iloilo, saying that since he is a resident of Negros Oriental, the action for divorce should have been filed there, it being the domicile of his wife. Wife cannot acquire residence in Iloilo before their marriage was legally divorced WON ACTION FOR DIVORCE CAN BE FILED BY WIFE IN HER PLACE OF RESIDENCE, SEPARATE FROM DOMICILE OF HUSBAND? YES GR: domicile of husband is domicile of wife Ratio: theoretic identity of person and of interest between the husband and wife + presumption that from the nature of the relation, the home of the one is that of the other -intention: promote, strengthen, and secure their interest in the relation where union and harmony prevail X: 1. Where the theoretical unity of husband and wife is dissolve 2. Where the husband has given cause for divorce (applicable in this case) 3. Where there is a separation of the parties by agreement 4. Where there is a permanent separation due to the de sertion of the wife by the husband or cruel treatment of husband 5. Where there has been a forfeiture by the wife of benefit of the husband's domicile *-*-*-*-*-*-*-*-*-*-*-*-*-**-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* *-*-*-*-*-*-*-*-* -*-* If this case decided using MODERN VIEW, dispense with any presumption that the wife's domicile is the same as her husband's as each party establishes his or her own domicile completely independent of each other. 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  4|c o n t i n u a t i o n o f D o m i c i l e p l u s s t a r t i n C h o i c e o f L a w i n F a m i l y R e l a t i o n s _ C h a  Paramount interest of the state in preserving it -admitted to the country as the son of the deceased 2. MORA ADONG 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) Personal law of  the parties -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 BOO's son, then he should have a share in the estate as a natural child 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." Formalities External conduct required of the parties or 3p necessary to the formation of a legally valid marriage (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) Capacity of the parties to marry (see it later) Art3, FC: Formal requirements of marriage: 1. Authority of solemnizing officer 2. Valid marriage license except in cases provided in Chapter 2 3. Marriage ceremony: a. Appearance of the contracting parties before the solemnizing officer b. Personal declaration that they take each other as husband and wife in the presence of not less than 2 witnesses of legal age -both parties appealed -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 ~*~*~*~*~*~*~*~*~*~  ADONG V. CHEONG SENG GEE (1922) The alleged legitimate child of the decedent in an alleged Chinese of its existence so as t o 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. wedding claimed against against the lawfully married wife of the decedent in RP for 23 years Chinese marriage not proven, Moro Marriage acceptable under RP Law (compared to Marriage law in US which was made to accommodate marriages -decedent: CHEONG BOO between Indians, Quakers and Mormons) so ADONG would have a share as the >native of China legitimate wife, together with the 2 children >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 5|c o n t i n u a t i o n o f D o m i c i l e p l u s s t a r t i n C h o i c e o f L a w i n F a m i l y R e l a t i o n s _ C h a 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 t ribe to short summary: Alleged Chinese wife admitted to RP based on the alleged marriage which she belongs. 1st husband sues her for Bigamy 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 Facts: in RP, said marriage is not recognized, thus cannot allow her in RP -Mora DUMPO married Moro HASSAN in accordance with rites and practices of  Mohammedian Religion Facts -DUMPO allegedly allegedly contracted a 2nd marriage w/ SABDAPAL w/o dissolving 1st -WONG WOO YU came to RP in 1961 to join her FILIPINO HUSBAND, PERFECTO marriage, lived together as husband and wife BLAS -HASSAN filed BIGAMY case -WONG WOO YU and PERFECTO BLAS were allegedly married in China on 1929 in CFI: DUMPO guilty a ceremony celebrated by a village leader  -Dumpo appeals: no consent from father for her to get married again so no 2nd on the declaration that she is the wife of a Filipino, she was admitted to RP as a marriage to speak of, thus, no bigamy non-quota immigrant WON 2nd marriage is valid (thus, DUMPO GUILTY OF BIGAMY)? NO. -reversal: no substantial proof of husband-wife relationship relationship affirmed, later reversed -Mohammedian rites NOT taken JN of, as it must be subject to proof in every particular case  Discrepancies Discrepancie s in statements of the alleged couple in several investigations conducted -evidence presented:  Testimony of TAHARI, Imam/Mohammed Imam/Mohammedian ian Priest authorized to solemnize WON WONG WOO YU AND BLAS'S MARRIAGE IS RECOGNIZED IN RP? NO marriages between Mohammedian Mohammedians: s: -no documentary evidence to support t he alleged marriage >consent of either father of the bride or the chief of the tribe to which the bride -many inconsistenci inconsistencies es belongs (in the absence of father's consent) is an INDISPENS INDISPENSABLE ABLE REQUISITE FOR THE VALIDITY OF MARRIAGE Legal basis: >here, not refuted that this requisite was absent + no refutation that such requisite is -Art 15, NCC: marriage by Blas must follow RP law (laws relating to family rights or to indeed required status of persons are binding upon RP citizens even t hough living abroad)  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 -What are valid marriages in RP (PUBLIC ACT 3412, Section 2): if solemnized by: o Judge of any court inferior to SC o Justice of peace o Priest or minister of the gospel of any denominatio denomination n duly registered in Philippin Philippine e Library and Museum H: as the 2nd marriage was not valid (lacks essential requisite of consent of  -on Article 71, NCC: marriage contracted outside RP which is valid under the law of  father/tribe chief), no bigamy so DUMPO acquitted 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 6|c o n t i n u a t i o n o f D o m i c i l e p l u s s t a r t i n C h o i c e o f L a w i n F a m i l y R e l a t i o n s _ C h a >>>if apply processual presumption, RP laws does not allow marriage to be celebrated by a village leader so still not valid ~*~*~*~*~*~*~*~*~*~ marriage by proxy celebrated in Argentina but the wife was in o No public policy issue ~*~*~*~*~*~*~*~*~*~ 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: England (where such is not allowed). Wife not assails the said marriage but the marriage was held to be valid Extrinsic validity Intrinsic validity Lex loci celebrationis Lex nationalii 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 t o 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 marriages Does not allow proxy proxy marriages Examples: CC: Bigamous Polygamous Incestuous FC (adds): If under aged (below 18) Bigamous/polygamous 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 Mistake in identity of contracting parties Psychological incapacity Marriage is incestuous Void by reason of public policy WON the proxy marriage should be allowed? YES ~*~*~*~*~*~*~*~*~*~ -as regards marriage, locus regit actum. INTRINSIC VALIDITY OF MARRIAGE Intrinsic validity: -capacity/general ability of a person to marry (age, parental consent) -controlled by personal law -if a marriage is good by t he 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: o Contract of marriage celebrated in Buenos Aires o Ceremony was performed strictly in accordance with law of Argentina o Celebration of marriage by proxy is a matter of FORM of the ceremony or  proceeding o Not abhorrent to Christian ideas in adoption of proxy marriages 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 7|c o n t i n u a t i o n o f D o m i c i l e p l u s s t a r t i n C h o i c e o f L a w i n F a m i l y R e l a t i o n s _ C h a 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 m arriage (okay, pikot…) *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 *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 CAPACITY MUST Portugal first cousins, both under-aged, were married in London (w/o DEPEND ON THE LAW OF THE DOMICILE, and if the laws of any country prohibit religious ceremony), never consummated consummated marriage, just for the sake of saving the its subjects w/n certain degrees of consanguinity from contracting marriages, a stamp girl's family from bankruptcy. Now girl wants to declare marriage void. Court ruled for  of marriage between persons w/n the prohibited prohibited degrees as incestuous, incestuous, this in our  her, saying that since Portugal makes marriage between first cousins void, it is void pinion imposes on the subjects of that country a personal incapacity incapacity w/c continues to even if they were married in London. Capacity to marry is governed by the personal affect them so long as they are domiciled in the country where the law prevails, and law. 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 IGNACIA SOTTOMAYOR and GONZALO DE BARROS are (in short: since still domiciled in Portugal, and law of the domicile governs their  *Portuguese capacity to marry, and Portugal prohibits such marriages, then their marriages is void) *domiciled and residing in Portugal 8|c o n t i n u a t i o n o f D o m i c i l e p l u s s t a r t i n C h o i c e o f L a w i n F a m i l y R e l a t i o n s _ C h a Portuguese law allows it. Not just mere form but on capacity to marry. BUT NO PAPAL DISPENSATION HERE. ~*~*~*~*~*~*~*~*~*~ 2nd marriage allowed even if 1st wife Can't remarry until 1st (divorced) was still alive spouse dies …H: marriage valid GR: the rights dependent upon nuptial contracts are to be determined by the lex loci  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. 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?) SAM MAY: uncle *Review of law: FANNIE MAY: Niece by half blood NY LAW Rhodes Island Law Makes penal (imposes a fine and Though incestuous imprisonment) for marriages marriages also void, it marriages between uncle and niece, whether  was qualified in that if  between uncle legitimate or illegitimate relatives, the marriage was bet: and the marriage is void * Quakers BUT IT DOES NOT EXPRESSLY *Friends REGULATE MARRIAGES *Jews SOLEMNIZED IN ANOTHER +according to their  SURROGATE SURRO GATE COURT: marriage VOID so Sam did not qualify for the letters of  STATE WHERE THE MARRIAGE rites, the marriage is administration as surviving spouse IS CONSIDERED LEGAL (was good and valid, it allegedly also ruled in should be valid -both were Jewish -both were residents of NY, but married in Rhode island, then returned to NY  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…) Jewish Law  Allows and niece ) -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) - 1. NO POSITIVE LAW in NY: no law declaring invalid marriages contracted in involved a "divorced" husband and 2nd wife, married in Connecticut Connecticut where 2nd marriage allowed allowed even if 1st wife still alive. Connecticut Why the exceptions do not apply: NY 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 9|c o n t i n u a t i o n o f D o m i c i l e p l u s s t a r t i n C h o i c e o f L a w i n F a m i l y R e l a t i o n s _ C h a  Not brothers and sisters Both are considered widows Therefore: good and valid in law, not offensive t the public sense of morality to a degree regarded generally with abhorrence… Only the 1st wife is considered the legal widow H: polygamous marriages can be recognized in English law so as to confer on the  DISSENT: DESMOND WIVES the status of a wife for purposes of Section 10 of the British Nationality and  -NY has right to declare marital status of its own citizens Status of Aliens Act or for purposes of succession, and upon the children the status of  -marriages between uncle and niece, though not forbidden in Old Testament, is legitimacy  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 ~*~*~*~*~*~*~*~*~*~ 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) ~*~*~*~*~*~*~*~*~*~ 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 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 l egal widow) Punjab, India ~*~*~*~*~*~*~*~*~*~ Marriages Celebrated by a Consular Officer  ART9, Hague Convention on Validity of Marriages: marriage celebrated by a d iplomatic 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 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  California If different nationalities: 10 | c o n t i n u a t i o n o f D o m i c i l e p l u s s t a r t i n C h o i c e o f L a w i n F a m i l y R e l a t i o n s _ C h a GR: national law of husband X: contrary to law, customs, good morals of the forum MATRIMONIAL PROPERTY REGIMES: the applicable law continues notwithstanding any change of nationality or habitual residence ART 69, FC: Both husband and wife has right to fix family domicile ~*~*~*~*~*~*~*~*~*~ 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) 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 citizens the right to be admitted, much less to be given permanent residency in RP 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  -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 ~*~*~*~*~*~*~*~*~*~ 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: internal law designated by spouses before marriage (prenuptial agreement)  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 HAGUE CONVENTION ON 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) 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 11 | c o n t i n u a t i o n o f D o m i c i l e p l u s s t a r t i n C h o i c e o f L a w i n F a m i l y R e l a t i o n s _ C h a ~*~*~*~*~*~*~*~*~*~ Former Filipina obtained divorce while still a Filipina then obtained Nevadan citizenship, citizenship, remarried. Now being sued for legal separation and damages, which are both granted  Foreign divorce between Filipino citizens nor recognized  Remarriage of divorced wife and cohabitation with person other than lawful husband is ground for legal separation   Desertion and securing of individual divorce decree entitles one to damages  An action for alienation alienation of affections against against parents does not not lie if NO Malice/ Malice/ unworthy motives -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 Nevada Court decree of divorce divorce was valid, so is is her 2nd marriage -1958: Escano obtained American citizenship LC: no legal separation, but Tenchavez do not need to support Escano -at the time the divorce was issued, Escano was still a Filipino citizen, 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 -Refusal to perform wifely duties, denial of consortium, desertion of husband constitutes wrong + adultery 12 | c o n t i n u a t i o n o f D o m i c i l e p l u s s t a r t i n C h o i c e o f L a w i n F a m i l y R e l a t i o n s _ C h a