Conflict of Laws Reviewer (Justice Sempio Dy)

Those who are citizens from birth without

having to perform any act to acquire or
Chapter 6 perfect their Philippine citizenship
Persona law Theories in determining ones personal
law Native-born Filipinos
Those born in the Philippines. Natural-born
citizens may not be native-born if they were
Personal law.
born abroad
That which attaches to him wherever he may go. The law that
generally governs his status, capacity, condition, family
2. Citizens by naturalization
relations, and the consequences of his actuations. It may be:
Those who were formerly aliens but by
1. National law
judicial, legislative, or administrative
2. Law of his domicile
process, have become Filipino citizens
3. Law of the situs
Jus soli v. jus sanguinis
Status vs. capacity
Jus soli Jus sanguinis
Status Capacity
A person is a citizen of the It is citizenship by blood
Place of an individual in Only part of ones status and
country where he was born
society and consists of may be defined as the sum
or of the country of his birth This is the rule that we
personal qualities and total of his rights and
follow in the Philippines
relationships more or less obligations
permanent, with which the
Note: Each country or state has the sole power and authority
state and the community are
to determine under its internal or municipal law who are its
concerned
citizens or nationals
Two kinds of capacity
Dual allegiance under Sec. 5, Article IV of the
1. Juridical capacity
Constitution
Passive capacity
The provision in the Constitution (dual allegiance of citizens is
The fitness to be the subject of legal
inimical to national interest and shall be dealt with by law) is
relations
concerned not with dual citizenship per se but with
2. Capacity to act
naturalized citizens of the Philippines who still maintain their
Active capacity
allegiance to the countries of their origin.
The power to do acts with legal effects
Effective nationality theory
Within a third state, a person having more than one
Characteristics of status
nationality shall be treated as if he had only one. Without
1. It is conferred principally by the State, not by the
prejudice to the application of its law in personal matters and
individual
of any conventions in force, a third state shall apply the
2. It is a matter of public interest or social interest
nationalities which any such person possesses, recognize
3. Being a concept of social order, it cannot easily be
exclusively in its territory either the nationality of the country
terminated at the mere will or desire of the parties
in which he is habitually and principally a resident, or the
concerned
nationality of the country with which in the circumstances he
4. It is generally supposed to have a universal
appears to be in fact mostly connected
character
The law of the country of which the deceased was
both a citizen and a domiciliary at the time of her
death is considered more effectively connected to
her than her other national law.

Citizens of the Philippines under the 1987 Constitution

Different theories on how the personal law of an
1. Those who are citizens of the Philippines at the time
individual is determined
of the adoption of this Constitution
1. The nationality theory
2. Those whose fathers or mothers are citizens of the
Personal theory
Philippines
The status and capacity of a person are
3. Those born before January 17, 1973, of Filipino
determined by the law of his nationality or
mothers, who elect Philippine citizenship upon
his national law
reaching the age of majority and
2. The domiciliary theory
4. Those who are naturalized in accordance with law
By virtue of which the status and capacity of
a person is determined by the law of his
Citizenship of a Filipino woman who marries a foreigner
domicile
Citizens of the Philippines who marry aliens shall retain their
Territorial theory
citizenship unless by their act or omission they are deemed,
3. The situs or eclectic theory
under the law, to have renounced their Philippine citizenship
Views the law of a particular place or situs
(Article 4, Sec. 4, 1987 Constitution)
of an event or transaction as generally the
controlling law
Citizenship of an alien woman who marries a Filipino
husband
Note: The Philippines follows the nationality theory.
Under Sec. 15 of the Revised Naturalization Law (Com. Act
No. 475), an alien woman marrying a Filipino, native-born or
Nationality v. citizenship
naturalized, becomes ipso facto a Filipino, provided she is not
Nationality Citizenship
disqualified to be a citizen of the Philippines under Sec. 4 of
Refers to membership in a A citizen is one who owes the same law.
political community, one allegiance to and is entitled It is enough that an alien wife proves that she is not
that is personal and more or to the protection of the disqualified to be a Filipino citizen not necessarily in
less permanent, not State court but even before an agency like the
temporary. Immigration Commission
In the field of Conflict of Laws, nationality and citizenship
are the same Note: An alien woman married to an alien husband who
(the husband) is subsequently naturalized also follows
the Philippine citizenship of her husband, provided she
Chapter 7 does not suffer from any of the disqualifications under
The Nationality Theory Sec. 4 of the same Revised Naturalization Law. This is a
case of derivative naturalization (similar to the minor
Different kinds of citizenship in the Philippines children of a naturalized Filipino citizen)
1. Natural born citizens
Naturalization

CAYEN CERVANCIA CABIGUEN Page 1

Conflict of Laws Reviewer (Justice Sempio Dy)

The process of conferring on an alien the citizenship of

another country by any of the means provided by law.

Modes of acquiring Philippine citizenship by

naturalization
1. Judicial process
Com. Act No. 475 as amended by RA 530
2. Legislative process
When Philippine citizenship is conferred by a
special act of Congress on deserving aliens
3. Administrative process
RA 9139 or the Administrative
Naturalization Law of 2000
Under this law, a Special Committee on
Naturalization is created, with the power to
approve, deny, or reject applications for
naturalization filed with said Committee

Derivative naturalization
Philippine citizenship conferred on:
1. The wife of a naturalized husband
2. The minor children of a naturalized father
3. The alien wife of a natural born or naturalized
citizen, in the latter case, the marriage having taken
place after the husbands naturalization

CAYEN CERVANCIA CABIGUEN Page 2

Conflict of Laws Reviewer (Justice Sempio Dy)

Naturalization
Judicial naturalization under Com. Act. 475, Administrative naturalization under RA 9139 or
as amended the Administrative Naturalization Law of 2000
Qualifications 1. The petitioner must not e less than 21 years 1. The applicant must be born in the Philippines
of age on the date of the hearing of the and residing therein since birth
petition 2. The applicant must not be less than 18 years of
2. He must have, as a rule, resided in the age, at the time of filing of his/her petition
Philippines for a continuous period of not less 3. The applicant must be of good moral character
than 10 years and believes in the underlying principles of the
3. He must be of good moral character, and Constitution and must have conducted
believe in the principles underlying the himself/herself in a proper and irreproachable
Philippine Constitution, and must have manner during his/her entire period of
conducted himself in a proper and residence in the Philippines in relation with the
irreproachable manner during the entire duly constituted government as well as with the
period of his residence in the Philippines in community in which he/she is living
his relation with the constituted government 4. The applicant must have received his/her
as well as with the community in which he is primary and secondary education in any public
living school or private education institution duly
4. He must own real estate in the Philippines recognized by the DECS, where Philippine
worth not less than 5,000, Philippine history, government, and civics are taught and
currency, or must have some lucrative trade, prescribed as part of the school curriculum and
profession, or occupation where enrollment is not limited to any race or
5. He must be able to speak and write English or nationality: Provided, that should he/she have
Spanish and any one of the principal minor children of school age, he/she must have
languages and enrolled them in similar schools.
6. He must have enrolled his minor children of 5. The applicant must have a known trade,
school in any of the public or private schools business, profession, or lawful occupation, from
recognized by the Bureau of Private Schools which he/she derives income sufficient for
where Philippine history, government, and his/her support and if he/she is married and/or
civics are taught or prescribed as part of the has dependents, also that of his/her family:
school curriculum during the entire period of Provided, however, that this shall not apply to
the residence required of him, prior to the applicants who are college degree holders but
hearing of his petition for naturalization as are unable to practice their profession because
citizen they are disqualified to do so by reason of their
citizenship
6. The applicant must be able to read, write, and
speak Filipino or any of the dialects of the
Philippines, and
7. The applicant must have mingled with the
Filipinos and evinced a sincere desire to learn
and embrace the customs, traditions, and ideals
of the Filipino people
Disqualifications 1. Those opposed to organized government or affiliated with any association of group of person who
uphold and teach doctrines opposing all organized governments
2. Those defending or teaching the necessity of or propriety of violence, personal assault or
assassination for the success or predominance of their ideas
3. Polygamists or believers in the practice of polygamy
4. Those convicted of crimes involving moral turpitude
5. Those suffering from mental alienation or incurable contagious disease
6. Those who, during the period of their residence in the Philippines, have not mingled socially with
Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and
ideals of the Filipinos
7. Citizens or subjects of nations with whom the Philippines is at war
8. Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be naturalized
citizens or subjects thereof
Loss of citizenship
Under Com. Act 63, as amended, a Filipino citizen may lose his citizenship in any of the following ways:
1. By naturalization in a foreign country
2. By express renunciation of citizenship
3. By subscribing an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years
of age or more
4. By accepting commission in the military, naval, or air service of a foreign country
5. By cancellation of the certificate of naturalization
6. By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless
subsequently a plenary pardon or amnesty has been granted; and
7. In case of a woman, upon her marriage to a foreigner, if, by virtue of the laws in force in her husbands country, she
acquires his nationality
Under the 1987 Constitution, however, the woman retains her Philippine citizenship unless by her act or omission
she is deemed under the law to have renounced her Philippine citizenship

CAYEN CERVANCIA CABIGUEN Page 3

Conflict of Laws Reviewer (Justice Sempio Dy)

Philippine citizenship, how reacquired

Under C.A. 63, as amended, Philippine citizenship may be reacquired as follows:
1. By naturalization, provided the applicant possesses none of the disqualifications
2. By repatriation of deserters of the Army, Navy, or Air Corps, Provided, that a woman who lost her citizenship by reason of
her marriage to an alien may be repatriated in accordance with the provisions of this Act after the termination of the marital
status
3. By direct act of Congress

RA 9225 Citizenship Retention and Reacquisition Act of 2003

Under this law, natural born Filipino citizens who had been naturalized in foreign countries are deemed to have reacquired Philippine
citizenship by taking an oath of allegiance to the Philippine Constitution and laws. Those who become naturalized in foreign countries
after the effectivity of the Act retain their Philippine citizenship upon taking the same oath

Chapter 8
Domiciliary Theory

Domiciliary theory
It is the theory whereby the status, condition, family rights and obligations, and capacity of a person are governed by the law of his
domicile or the lex domicilii

Domicile
It is the place where a person has his true, fixed, permanent home, and principal establishment, and to which, whenever he is
absent, he has the intention of returning.
Art. 50 of the CC: For the exercise of civil rights and fulfillment of civil obligations, the domicile of natural persons is the
place of their habitual residence

Domicile v. residence
Domicile Residence
Denotes a fixed, permanent residence to which, when absent, Used to indicate a place of abode, whether permanent or
one has the intention of returning temporary
Residence is not domicile, but domicile is residence coupled with intention to remain for an unlimited time

Domicile v. citizenship
Domicile Citizenship
Speaks of ones permanent place of abode Indicates ties of allegiance and loyalty
A person may be a citizen or national of one sate and a domiciliary of another

Note: The forum applies its own concept of domicile in determining the domicile of a litigant before its courts (law of the forum/lex
fori, NOT national law, is the law that determines ones domicile)

Different kinds of domicile

1. Domicile of origin: The domicile assigned by law to a person at the moment of his birth
2. Constructive domicile or domicile by operation of law: The domicile assigned by law to a person after birth on account
of a legal disability, like minority, insanity, imprisonment, etc.
3. Domicile of choice: The domicile of a person sui juris because he has his home there and to which, whenever absent, he
intends to return

Principles regarding ones domicile of choice

1. No person can ever be without a domicile or every natural person must have a domicile
2. A person cannot have two simultaneous domiciles
3. A natural person, free (not a prisoner) and sui juris (one of age and under no disability), can change his domicile at pleasure
4. A domicile, once acquired, is retained until a new one is gained
5. The presumption being in favor of the continuance of an existing domicile, the burden of proof is on the one who alleges
that a change of domicile has taken place
6. To acquire a new domicile of choice, the following must concur:
(1) Residence or bodily presence in the new locality
(2) An intention to remain there (animus manendi) and
(3) An intention not to return to the former abode (animus non revertendi)

Rules determining ones domicile of origin

If the child is legitimate His domicile of origin is that of his parents at the time of his birth

If parents are separated, the domicile of the custodial parent

If the child is illegitimate His domicile of origin is that of the mother at the time of his birth
If the child is legitimated The domicile of his father at the time of his birth controls
If the child is adopted The domicile of origin is the domicile of his real parents at the
time of his birth, NOT the domicile of the adopters

CAYEN CERVANCIA CABIGUEN Page 4

Conflict of Laws Reviewer (Justice Sempio Dy)

If a foundling The domicile of origin is the country where it was found

Rules determining ones constructive domicile

MINORS
1. If legitimate, the domicile of both parents
In case of disagreement, that of the father, unless there is a judicial order to the contrary
2. If illegitimate, the domicile of the mother
3. In case of absence or death of either parent, the domicile of the present parent.
Even in case of remarriage of the surviving parent, still his/her domicile determines the constructive domicile of the
minor child
4. If the child is adopted, the domicile of choice of the adopter is the childs constructive domicile
INSANES, IDIOTS, IMBECILES
The law assigns their domicile to them:
1. If they are below the age of majority, the rules on minors apply to them
2. If they are of age and have guardians, they follow the domicile of choice of their guardians
3. If they are of age and have no guardians, their constructive domicile is their domicile of choice before they became insane
MARRIED WOMEN
1. The constructive domicile of the wife is the domicile of both
spouses, unless the law allows the wife to have a separate
domicile for valid and compelling reasons
2. If there is legal separation between the spouses, the wife
can have her own domicile of choice
3. If there is a separation de facto, the wife can also have a
separate domicile
If the marriage is valid
Apply the same rules when the marriage is valid. However, after
If the marriage is voidable annulment, the wife can freely select her own domicile of choice
If the marriage is void The wife can have a domicile separate from the husband
OTHER PERSONS
Convict or prisoner His domicile is the one he had possessed prior to his
incarceration
Soldiers Their domicile is their domicile before their enlistment
Public officials or employees abroad (diplomats, etc) Their domicile is the one they had before they were assigned
elsewhere, unless they voluntarily adopt their place of
employment as their permanent residence

Chapter 9
The situs or eclectic theory

Situs or eclectic theory

The capacity, status, and family relations of a person are governed not necessarily by the law of his nationality or the law of his
domicile but by the law of the place (situs) where an important element of the problem occurs or is situated

Two kinds of participation of an individual under the situs or eclectic theory

1. If participation is active When he does an act voluntarily, the governing law is the law of the actual situs of the
transaction or event
2. If the participation is passive When the effects of the act are set forth or determined by law, the governing law is the
law of the legal situs, i.e., the domicile of the individual concerned

Chapter 10
The problem of the renvoi

Renvoi
A French word which means refer back or return
In Anglo-American countries, the term used is remission, which means to refer a matter for consideration or judgment

When does the problem of renvoi arise?

The problem of renvoi arises when there is doubt as to whether the reference by the lex fori (the law of the country where the
problem arises) to the foreign law involves:
1. A reference to the internal law of the foreign law or
2. A reference to the entirety of the foreign law including its conflicts rules
In such case, if the first state follows the nationality theory, and the second state follows the domiciliary theory,
the problem of renvoi will most probably arise

Four solutions the court can adopt when confronted with a renvoi problem
1. Reject the renvoi
This means that the court does not want the problem to be sent back to us.

CAYEN CERVANCIA CABIGUEN Page 5

Conflict of Laws Reviewer (Justice Sempio Dy)

As in the case of the testate or intestate succession of a foreigner but domiciled in our country, we would simply
apply his national law or the internal law of his country
2. Accept the renvoi
Accept the referral or transmission of the case back to us, so that instead of applying the foreign internal law,
Philippine law is applied
Single renvoi or single transmission
3. Follow the theory of desistment or the mutual disclaimer of jurisdiction theory
Refrain from applying the national law of the deceased foreigner, although our law tells us to do so.
If said law follows the domiciliary theory and directs that we apply the law of the domicile of the deceased, so in
the end, we still apply Philippine law

4. Apply the foreign court theory

We would simply do what the foreign court would do if confronted with the same case
Advantage of this theory is that regardless of the forum, the applicable law will be the same
Can also result in international ping pong

Double renvoi
This occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi. But since
the foreign law remits the case to Philippine law, being the law of the deceaseds domicile, the foreign court may discover that
Philippine law does not accept the remission (as it applies the national law of the deceased) so the foreign court, sitting as a
Philippine court, would still apply its own internal law. This is then what our court will apply.

Theory of transmission v. renvoi

Theory of transmission Renvoi
Transmission is the process of applying the law of a foreign state Renvoi means to refer a matter for consideration or judgment
thru the law of a second foreign state
Transmission involves three laws Renvoi involves two laws

Chapter 11
Conflict rules on status and capacity

When human personality begins under our law

Art. 40, NCC: Birth determines personality, but the conceived child shall be considered born for all purposes that are
favorable to it, provided it be born later with the conditions specified in the following article
Art. 41, NCC: For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the
mothers womb. However, if the fetus had an intra-uterine life of less than 7 months, it is not deemed born if it dies within
24 hours after its complete delivery from the maternal womb

Personality really begins at conception, subject to the following conditions:

1. The purpose is favorable to the fetus
2. If it is born alive under Art. 41 of the NCC

Two kinds of children

1. Ordinary With an intra uterine life of at least 7 months
2. Extraordinary With an intra-uterine life of less than 7 months, in which case it must live for at least 24 hours after
complete delivery from the mothers womb

Note: In Conflict of Laws, personal law determines the beginning of ones personality.

Civil personality, when extinguished

Art. 42 of the NCC: Civil personality is extinguished by death
Refers to physical death not civil death
A declaration of death in accordance with ones personal law (whether his national law or the law of his domicile) by a court
of competent jurisdiction is considered valid for all purposes

Absence, defined
A special legal status pertaining to a person who has disappeared from his domicile, his whereabouts being unknown, without leaving
an agent to administer his property or even if he had left an agent, the power conferred by the absentee on the agent has expired
One status of being absent is determined in accordance with his personal law
Our own courts also have jurisdiction to declare an alien domiciliary in the Philippines as absent

Judicial declaration of absence under Philippine law

After the lapse of two years without any news about the absentee or since the receipt of the last news, and five years if the
absentee has left an administrator of his property, his absence may be declared

Instances when an absentee may be presumed dead and for what purposes
1. For purposes of remarriage the absentee may be presumed dead after four years of absence, the present spouses
having a well-founded belief that the absentee is already dead
However, in case of disappearance where there is danger of death, an absence of 2 years is enough

CAYEN CERVANCIA CABIGUEN Page 6

Conflict of Laws Reviewer (Justice Sempio Dy)

2. For all other purposes EXCEPT succession an absence of seven years, it being unknown whether or not the absentee
still lives
3. For the purpose of succession an absence of 10 years is required, except if the absentee disappeared after the age of
75 years, in which case an absence of 5 years is enough to open his succession

What determines the age of majority in Conflict of Laws?

It is the personal law of the person that determines whether he has reached the age of majority or not.

Our conflicts rules on capacity to contract

A persons capacity to contract is governed by his personal law, whether it is the lex nationalii or the lex domicilii
EX: Contracts involving real or personal property in which cases the lex situs or lex rei sitae applies including the capacity of
the contracting parties

Note: It is suggested that Article 15 of the CC applying the nationality theory be limited to strictly family and domestic transactions,
while the law governing the contract should govern ordinary day-to-day business contracts.

Change of names and surnames

A change of name is a special proceeding to establish the status of a person involving his relation with others. Aliens can ask for
change of name in the Philippines, provided they are domiciled here.
But an alien whose citizenship is either controverted or doubtful cannot ask for a change of name

Legislative jurisdiction vs. judicial jurisdiction over ones status

Legislative jurisdiction Judicial jurisdiction
Legislative jurisdiction over ones status is the power of his Judicial jurisdiction over ones status is the power of the courts
personal law to govern his status wherever he goes to decide questions or controversies concerning ones status

Note: Thus, our courts can decide cases involving the status and capacity of foreigners brought before them, but in doing so, our
courts will apply the personal law of the foreigner, whether it be his national law or the law of his domicile, depending on what theory
the country of his citizenship follows.
Example: Even if the personal law of the foreigner allows divorce, he cannot apply for divorce from his spouse before a
Philippine court because we do not recognize divorce and our courts have no jurisdiction to grant divorces. However, a
foreigner who applies for legal separation in our country on a ground available under his national law but not under our law,
may obtain a favorable judgment from our courts, because it is his national law on legal separation that our courts will
apply, but subject to our procedural law.

CAYEN CERVANCIA CABIGUEN Page 7