CONFLICT OF LAWS IN MARRIAGE AND DIVORCE

MARRIAGE
Among the most complicated subject matter in the study of domestic law is that
of marriage. Equally, marriage and divorce is likewise cited as a source of
abundant questions arising out of the conflict of laws as regards marriage in the
international law.

According to Pe Benito, all societies consider marriage as essential to the

functioning of society. Marriage hold the members together and prevent the
disintegration of family life. Citing Maynard v. Hill (1888), marriage was referred to
as an institution whose maintenance the public is deeply interested for it is the
foundation of the family and of society, withuot which there would be neither
civilization nor progress.
In the Philippine law context, marriage is defined as 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 the limits
provided by this Code.
Conflict of laws usually arises in marriage cases basically due to the presence of
a foreign element. As briefly defined, foreign element is the most important
component of conflicts of law problem. It is anything which is not domestic and
has a foreign component to it. To exemplify, there is foreign element where the
marriage is celebrated abroad and this marriage is sought to be recognized in
another jurisdiction or where the parties are citizens or nationals of different
states such that their capacity to contract marriages is dictated by their
respective national law. In addition, Sempio-Diy is of the opinion that conflict also
arises in marriage cases because different countries or states have different laws
in determining the validity of marriage as a contract. To illustrate, the Philippines’
policy and concept of marriage is embodied in Article 1 of the Family Code,
however, some countries do not conform to that definition. Yet to deny them
validity would create very serious problems in the status of children, the personal
and property relations of the spouses, the authority and rights of parents towards
their children and vice versa, the respective rights of succession of the spouses
and the members of their family.
Briefly, a valid marriage in Philippine law point of view requires the concurrence
of two essential requisites, namely, legal capacity and consent and formal
requisites consisting of authority of the solemnizing officer, marriage license and
marriage ceremony. These formal requisites apply also to foreigners who get
married in the Philippines.
Considering the above formal requisites therefore, a common law marriage
between Filipinos in the Philippines is void (Enriquez v Enriquez; Eugenio v
Velez). As to common law marriages of foreigners who come to the Philippines a
s husband and wife, it would seem that we should consider the marriage valid if
valid under their national law or the law of the place where the relationship began.

Full Faith and Credit

In confronting conflict of laws situations in relation to matrimonial law, the

general rule followed in the Philippines is that if a marriage is valid in the place of
celebration, it must also be valid in the Philippines. This general principle is
referred to as the full faith and credit doctrine by Pe Benito. According to the
same author, the rationale of this principle is the predictability and the interstate
order arising from society’s interest in marriage.

This principle traces its legal basis from Article 26 of the Family Code which
provides, “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, except those prohibited under Articles 35
(1), (4), (5) and (6), 36, 37 and 38.”

The full faith and credit principle may be illustrated in the case of US v Jarvison
decided in 2005 wherein the US Supreme Court declared as valid the marriage
celebrated between Esther and Ben Jarvison despite the absence of certain
formalities like the marriage license. Justifying such conclusion, the Court
therein said that under the Navajo tradition, celebration of a traditional marriage
ceremony and the knowledge thereof by the community were sufficient to create
a valid marriage. A marriage license or other documentation was unnecessary.
Current Navajo law allows parties to contract marriage within the Navajo Nation.
In addition to longstanding Navajo common law and current Navajo Code
recognizing unlicensed or invalidated traditional marriages performed at times.
However, like any other general rule, the full faith and credit principle admits of
several exceptions and these are the following:
Incestuous Marriages under Article 37, Chapter 3, Title 1 of the Family Code
Between ascendants and descendants of any degree and
Between brothers and sisters, whether of the full or half blood

Void marriages by reason of public policy under Article 38, chapter 3 title 1 of the
Family Code
Between collateral blood relatives whether legitimate or illegitimate, up to the
fourth civil degree
Between step-parents and step-children
Between parents-in-law and children-in-law
Between the adopting parents and the adopting child
Between the surviving spouse of the adopting parent and the adopted child
Between the surviving spouse of the adopted child and the adopter
Between an adopted child and a legitimate child of the adopter
Between adopted children of the same adopter and
Between parties where one, with the intention to marry the other, killed that other
person’s spouse, or his or her own spouse.

Polygamous or Bigamous Marriages under Article 35, Chapter 3, Title 1 of the

Family Code

Same Sex marriage (contracting parties must be male and female under Article 2,
Chapter 1, Title 1 of Family Code)
To illustrate this exception as to same sex marriage, we may delve into the case
of Obergefell v. Hodges wherein the Court ruled that same sex couples may
exercise the right to marry. In this case, four principles and traditions were
discussed by the Court to demonstrate the reasons why the privilege to marry
should be accorded with equal force to same-sex couples. A first premise of the
Court’s relevant precedents is that the right to personal choice regarding
marriage is inherent in the concept of individual autonomy. This abiding
connection between marriage and liberty is why Loving invalidated interracial
marriage band under the Due Process Clause. A second principle in this Court’s
jurisprudence is that the right to marry is fundamental because it supports a two-
person union unlike any other in its importance to the committed individuals. As
this Court held in Lawrence, same sex couple have the same right as opposite-
sex couples to enjoy intimate association. A third basis for protecting the right to
marry is that it safeguards children and families and thus draws meaning from
related rights of childrearing procreation and education. As all parties agree,
many same sex couples provide loving and nurturing homes to their children,
whether biological or adopted. And hundreds of thousands of children are
presently being raised by such couples. Most States have allowed gays and
lesbians to adopt, either as individuals or as couples, and many adopted and
foster children have same-sex parents. This provides powerful confirmation from
the law itself that gays and lesbians can create loving, supportive families. Fourth
and finally, this Court’s cases and the Nation’s traditions make clear that
marriage is a keystone of our social order.
Conflicts Rules on Marriages
As simplified by Sempio-Diy in the Philippines, we still apply the rule of lex loci
celebrationis, but not the exceptions in the first paragraph of Article 26 of the
Family Code, which apply only to Filipinos. Universally, however, incestuous
marriages are considered void in the Philippines regardless of whether these
unions are considered valid in the place where they celebrated. Citing Salonga,
Sempio-Diy further discussed that as regards proxy marriages, while they are not
allowed under the Philippine internal law, the rule in the US is that where
permitted by the law of the place where the proxy participates in the marriage
ceremony, they are entitled to recognition at least insofar as the formal validity of
the marriage is concerned. As to marriages on board a vessel on high seas, since
nation whose flag the ship is flying has jurisdiction over the ship, the rule is that
compliance with this law is required for a marriage to be validly contracted
The Hague Convention declares that the governing law on matrimonial property
regime is:
a. The internal law designated by the spouses before the marriage
b. In the absence thereof, the internal law of the state in which the spouses fix
their 1st habitual residence

Philippine Rule on Property Relations

In the absence of a contrary stipulation in the marriage settlements, the property
relations of the spouses shall be governed by Philippine laws, regardless of the
place of the celebration of the marriage and their residence. (Article 80)

This rule shall not apply:

1. Where both spouses are aliens;
2. With respect to the extrinsic validity of contracts affecting property not situated
in the Philippines and executed in the country where the property is located; and
3. With respect to the extrinsic validity of contracts entered into in the Philippines
but affecting property situated in a foreign country whose laws require different
formalities for their extrinsic validity. (Article 80 Family Code)

Doctrine of Immutability of Matrimonial Property Regime

That the change of the nationality on the part of the husband or the wife or of
both does not affect the original property regime EXCEPT when the law of the
original nationality itself changes the marital regime hence, the property regime
has to change accordingly.

DIVORCE

The Philippine values the sanctity of marriage more than anything else. In the
Philippines, marriage is seen as an institution and not merely as a contract which
may be subject to abrogation by the parties. Therefore, acts that will weaken the
foundation of the family as a social institution will not be recognized or given in
our jurisdiction.

The following are relevant cases wherein directly or indirectly divorce has been
the subject matter of Philippine jurisprudence which up to the present is
applicable to cases of similar factual circumstances.

In Tenchavez v Escano (G.R. No. L-19671; November 29, 1965) that The Civil Code
of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo
matrimonii; and in fact does not even use that term, to further emphasize its
restrictive policy on the matter, in contrast to the preceding legislation that
admitted absolute divorce on grounds of adultery of the wife or concubinage of
the husband (Act 2710). Instead of divorce, the present Civil Code only provides
for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it
expressly prescribes that "the marriage bonds shall not be severed" (Art. 106,
subpar. 1).
For the Philippine courts to recognize and give recognition or effect to a foreign
decree of absolute divorce between Filipino citizens could be a patent violation of
the declared public policy of the state, specially in view of the third paragraph of
Article 17 of the Civil Code that prescribes the following:
Prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, policy and good customs, shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.
However, in Van Dorn v Romillo (G.R. No. L-68470, October 8, 1985), the Court
ruled that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute
divorces the same being considered contrary to our concept of public police and
morality. However, aliens may obtain divorces abroad, which may be recognized
in the Philippines, provided they are valid according to their national law. In this
case, the divorce in Nevada released private respondent from the marriage from
the standards of American law, under which divorce dissolves the marriage.
To maintain, as private respondent does, that, under our laws, petitioner has to
be considered still married to private respondent and still subject to a wife's
obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner
should not be obliged to live together with, observe respect and fidelity, and
render support to private respondent. The latter should not continue to be one of
her heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to be served.
In San Luis v San Luis (G.R. No. 133743, February 6, 2007) the court ruled that
indeed, when the object of a marriage is defeated by rendering its continuance
intolerable to one of the parties and productive of no possible good to the
community, relief in some way should be obtainable. Marriage, being a mutual
and shared commitment between two parties, cannot possibly be productive of
any good to the society where one is considered released from the marital bond
while the other remains bound to it. Such is the state of affairs where the alien
spouse obtains a valid divorce abroad against the Filipino spouse, as in this
case.
Petitioners cite Articles 15 and 17 of the Civil Code in stating that the divorce is
void under Philippine law insofar as Filipinos are concerned. However, in light of
this Court’s rulings in the cases discussed above, the Filipino spouse should not
be discriminated against in his own country if the ends of justice are to be
served.
In the case of Pilapil v Ibay-Somera (G.R. No. 80116; June 30, 1989) the fact that
private respondent obtained a valid divorce in his country, the Federal Republic
of Germany, is admitted. Said divorce and its legal effects may be recognized in
the Philippines insofar as private respondent is concerned in view of the
nationality principle in our civil law on the matter of status of persons.
Thus, pursuant to his national law, private respondent is no longer the husband
of petitioner. He would have no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal assets. Under the same
considerations and rationale, private respondent, being no longer the husband of
petitioner, had no legal standing to commence the adultery case under the
imposture that he was the offended spouse at the time he filed suit.
In Roehr v Rodriguez (G.R. No. 142820, June 20, 2003) the court ruled that as a
general rule, divorce decrees obtained by foreigners in other countries are
recognizable in our jurisdiction, but the legal effects thereof, e.g. on custody, care
and support of the children, must still be determined by our courts.23 Before our
courts can give the effect of res judicata to a foreign judgment, such as the award
of custody to petitioner by the German court, it must be shown that the parties
opposed to the judgment had been given ample opportunity to do so on grounds
allowed under Rule 39, Section 50 of the Rules of Court. Here, it cannot be said
that private respondent was given the opportunity to challenge the judgment of
the German court so that there is basis for declaring that judgment as res
judicata with regard to the rights of petitioner to have parental custody of their
two children.
It was held by the Court in Republic v Orbecido (G.R. No. 154380, October 5, 2005)
that the reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce is
obtained abroad by the alien spouse capacitating the latter to remarry.