Chapter VI

PERSONAL LAW
THEORIES IN DETERMINING ONE'S PERSONAL LAW

1. What is a person's personal law?

A person's personal law may be defined as that which attaches to him wherever he may go; the law
that generally governs his status, capacity, condition, family relations, and the consequences of his actuations.

It may be his national law, the law of his domicile, or the law of the situs of the event or transaction
wherein he was involved, depending on the theory applied and enforced in the forum.

2. Distinguish "status" from "capacity".

Status is the place of an individual in society, and consists of personal qualities and relationships,
more or less permanent, with which the state and the community are concerned (Paras, supra, p. 100). It
includes the civil status of a person (whether he is single, married, widowed, or divorced; his paternity and
filiation (whether he is legitimate or illegitimate) or adopted; whether he is a minor or has reached the age of
majority; whether he has the capacity to enter into various transactions. It also includes his name, sex, and his
profession in certain cases (whether he is a lawyer or a doctor, or a judge or an appellate justice, etc.).

Capacity, on the other hand, is only part of ones status, and may be defined as the sum total of his
rights and obligations (Graveson, Conflict of Laws, p.96).

Under our Civil Code, there are two (2) kinds of capacity:
(a) juridical capacity (passive capacity) - which is the fitness to be the subject of legal relations; and
(b) capacity to act (active capacity) which is the power to do acts with legal effects.
(Art. 37, New Civil Code)

A baby has juridical capacity, but it has no capacity to act.

3. What are the characteristics of status?

(a) It is conferred principally by the state, not by the individual.

(b) It is a matter of public or social interest.
(c) Being a concept of social order, it cannot easily be terminated at the mere will or desire of the
parties concerned.
(c) It is generally supposed to have a universal character. When a certain status is created by the law
of one country, it is generally recognized all over the world.

4. State the different theories on how the personal law of an individual is determined.

(a) The nationality theory (also called the personal theory) - by virtue of which the status and
capacity of a person is determined by the law of his nationality or his national law.

(b) The domiciliary theory - by virtue of which the status and capacity of a person is determined by
the law of his domicile (also called the territorial theory).

(c) The situs or eclectic theory - which views the particular place or situs of an event or transaction
as generally the controlling law.
4. What theory does the Philippines follow? What about the United States?

We follow the nationality theory.

The United States, like other common law countries, follow the domiciliary theory.

5. Is personal law the same as national law?

In countries that follow the nationality theory like the Philippines, yes. In countries that follow the
domiciliary or eclectic or situs theory, no.

6. Is national law the same as the law of one's citizenship? In other words, are a person's nationality
and citizenship the same?

Nationality refers to membership in a political community, one that is personal and more or less
permanent, not temporary. A citizen, on the other hand, is one who owes allegiance to, and is entitled to the
protection of, the State. In the field of Conflict of Laws, however, nationality and citizenship are the same; or,
national and citizen are the same. When our law refers to one's national law, therefore, the law means
the person's law of citizenship. Thus, the national law of Filipinos is Philippine law. While the national law of
an alien is the law of his citizenship (e.g., Art. 16, sec. par., referring to the "national law" of the deceased).
Once a Filipino citizen, however, is naturalized in another country, his national law already becomes the law
of his new citizenship; the former Filipino citizen, once naturalized an American, is now an American citizen,
and his national law is now American law.

7. What are the reasons why some countries adopt the nationality theory, while others adopt the
domiciliary theory?

Civil law countries, like the Philippines, follow the nationality theory. In such countries, the
nationality theory has been considered justified on practical considerations of convenience and expediency.
The people of these countries are considered bound by a spirit of national unity, by a common history and
mores, so that the identity and legal position of their citizens are guaranteed by the consistent application of
their national laws on status and family relations wherever they may go and even when they migrate to other
countries. Note that many Filipinos who have become naturalized in other countries still want to come back
to the Philippines and die here because they still consider themselves as Filipinos.

The domiciliary theory, on the other hand, assumes that the attributes which make up one's status
and personal relations are intimately connected with the country where they have made their hone. It is
adopted by the United States and other common law countries, whose populations consist of peoples of
different nationalities with varying traditions, culture, and ideals, and whose unity may be considered achieved
by adopting the law of their domicile as the law that governs their status and family relations. Countries with
mixed population brought about by the migration of foreigners to their shores need the domiciliary principle
to attain a certain fusion of their population and to avoid the necessity of applying a different law to
practically every case.

Chapter VII

THE NATIONALITY THEORY

1. What are the weaknesses of the nationality theory?

(a) It offers no solution to the problem of a stateless person or one with dual or multiple citizenship.
 (b) It is unfair to consider a person still bound by his national law if he has lived in another country
for most of his life and practically all his ties are with that country.
(c) It is sometimes difficult for persons who want to change their national laws (like refugees from
Communist countries) to be naturalized in other countries.
(d) It is also sometimes difficult to solve problems relating to individuals in countries where most of
the people, having come from other countries, have different national laws or legal systems.

2. Since citizens and nationals are the same in Conflict of Laws, we should know who are Filipino
citizens considering that Philippine law follows them wherever they go in matters of status, legal
capacity, and family relations. It is, therefore, important for us to review Philippine law on
citizenship.

First of all, what are the different kinds of citizens in the Philippines?

Filipino citizens are either natural-born citizens, or naturalized citizens.

(a) Natural-born citizens are those who are citizens from birth without having to perform any act
to acquire or perfect their Philippine citizenship (Art. IV, sec. 2, 1987 Constitution).

Originally classified as citizens by election were those born before the 1973 Constitution of Filipino
mothers but of alien fathers who, upon reaching the age of 21 or within a reasonable time thereafter, elected
Philippine citizenship. But with the provision of the 1987 Constitution also considering as natural-born
citizens those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon
reaching the age of majority, those classified before as citizens by election are now considered natural-born
citizens.

Note: Native-born Filipino citizens are those born in the Philippines. Natural-born citizens may not
be native born if they were born abroad.

(b) Citizens by naturalization are those who were formerly aliens but by judicial, legislative, or
administrative process, have become Filipino citizens.

Foreign women who are married to Filipino husbands may also be considered citizens
by naturalization through said marriage if they have no disqualifications to become Filipino citizens by
naturalization, and the wives and minor children of those who had been naturalized as Filipino citizens are
also considered to be naturalized citizens by derivative naturalization.

3. What do you understand by the principles of jus soli and jus sanguinis in the law on citizenship?

Jus soli - A person is a citizen of the country where he was born, or of the country of his birth.
Thus, the baby of Filipino parents but born in the U,S. is not only a Filipino but also an American citizen
under "the principle of jus soli, which the U.S. follows.

Jus sanguinis - This is the rule that we follow in the Philippines. It is citizenship by blood; i.e., those
whose fathers or mothers, or whose both parents are Filipino citizens, is a Filipino citizen.

4. Who determines whether a person is a citizen of a certain state or country? For example, who
determines whether a person is a Filipino citizen or not?

Each country or state has the sole power and authority to determine under its internal or municipal
law who are its citizens or nationals. As provided in Art. 2 of the Hague Convention on Conflict of
Nationality Laws (April 12, 1930):
 Any question as to whether a person possesses the nationality of a particular state
should be determined in accordance with the law of that state.

Art. IV of the 1987 Constitution of the Philippines determines who are Filipino citizens. No foreign
law, or no law of a foreign country, can determine who are Filipinos. Similarly, our Constitution and laws
cannot determine who are, for example, Chinese or American citizens. Only the law of China, or the law of
the United States, can determine who are its citizens.

5. Considering that only the Philippines can determine who are Filipino citizens, may the problem of
the dual or multiple citizenship of a Filipino arise in the Philippines?

No, because as already stated, as long as he is a Filipino citizen, our country is not concerned if he
has any other citizenship. For example, if he was born of Filipino parents, he is a natural-born citizen under
the rule of jus sanguinis. He may also be a U.S. citizen under the principle of jus soli if he was born in U.S. soil.
But from the point of view of our Constitution and law, he is only a Filipino citizen, period.
6. What about Sec. 5, Art. IV of the 1987 Constitution providing that "dual allegiance of citizens is
inimical to the national interest and shall be dealt with by law"? Does this provision prohibit
Filipinos from having dual citizenship?

No. Dual citizenship cannot be avoided due to the diverse laws of the different countries of the
world as to who are their citizens and who are not. So, a Filipino may have dual citizenship, as shown in
Question 5 hereof. But the concern of the aforesaid provision of the Constitution is not with dual citizenship
per se but with naturalized citizens of the Philippines who still maintain their allegiance to the countries of
their origin. Thus, for candidates for public office with dual citizenship, suffice it that upon the filing of their
certificate of candidacy, they elect Philippine citizenship to terminate their status as persons with dual
citizenship, considering that their condition is the unavoidable consequence of conflicting laws of different
states. (Mercado v. Manzano, 307 SCRA 630 [1999]).

7. Considering, then, that it is the Philippine law that determines who are Filipino citizens and who
are not, so that it does not determine whether a Filipino is also an American citizen or a Chinese
citizen, etc., when would the problem of dual citizenship of a Filipino arise?

Such question would arise only from the point of view of a third state. For example, if a girl whose
parents are Filipinos but who was born and has lived all her life in California, U.S.A., is applying for
scholarship in a French university, the French authorities will regard her not as a Filipino but as an American,
as her California citizenship is the more effective connecting factor in determining what is her citizenship,
Filipino or Californian. This is applying the theory of effective nationality embodied in Art. 5 of the Hague
Convention on Conflict of Nationality Laws which provides:

Within a third state, a, person having more than one nationality shall be treated as if he had
only one. Without prejudice to the application of its law in personal matters and of any conventions
in force, a third state shall apply the nationalities which any such person possesses, recognize
exclusively in its territory either the nationality of the country in which he is habitually and principally
a resident, or the nationality of the country with which in the circumstances he appears to be in fact
mostly connected.

Undoubtedly, in the above problem, California is the more effective connecting factor in determining
which of the girl's two nationalities or citizenships, is her personal law.

8. In what case or cases may a Filipino have dual citizenship from the point of view of a third state?
 (a) In a case where a Filipino (because his parents are Filipinos) was born in American soil, he is a
Filipino under the rule of jus sanguinis while he is an American under the rule of jus soli.

(b) If a Filipino woman marries a foreigner whose national law allows her to become a citizen of her
husband's country like China by such marriage, she still retains her Philippine citizenship under Art. IV, sec. 4
of the 1987 Constitution, unless by her act or omission, she is deemed to have renounced her Philippine
citizenship. Therefore, she would be both a Filipino and a Chinese citizen, if she does nothing to renounce
her Philippine citizenship.

9. Give an example of a problem involving an alien who, from the point of view of the Philippines,
has dual citizenship.

Example: A woman who is a Japanese citizen by blood but a Chinese citizen by marriage, dies,
leaving some properties in our country where she did some business before her death. Since Art. 16, par. 2,
of the New Civil Code, requires us to apply her national law in determining who are her heirs and how much
is the share of each, we should know which law a Philippine court should apply to her succession; whether
Japanese law or Chinese law.

10. How should the foregoing problem of dual citizenship be resolved?

We should apply the effective nationality theory previously explained. If the deceased woman was
a domiciliary of Japan at the time of her death, then the Philippine court should apply Japanese law. If,
however, she was a domiciliary of China at the time of her death, the court should apply Chinese law. This is
because 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. Or, stated
otherwise, she was more closely connected to the country where, being a citizen thereof, she and her
family also made it their home. Needless to say, that country where she and her family had their home was
closer to her heart than her other national law. And so, in all personal and family matters, it is that law that
the court should apply.

11. Suppose in the above problem, the deceased woman was residing at the time of her death, not in
Japan or China, but in another or a third country, like Singapore? Will the solution to the problem be
the same?

The solution would now be different because we can no longer say that she was more closely
connected to Japan or China, the countries of which she was a citizen at the time of her death. In this case,
then, the domiciliary theory comes to the rescue and will consider the country of her domicile at the time of
her death (Singapore). So, we should first apply the nationality theory by taking her two national laws
(Japanese and Chinese) and applying them together insofar as they are consistent and harmonious with each
other. But if they are inconsistent and in conflict with each other, then we should already apply the law of
Singapore, which was her domicile and home at the time of her death.

12. Suppose the person whose succession is in question before a Philippine court is stateless. How
should the court decide the case?

Since the person in question is stateless and, therefore, has no national law, we cannot apply the
nationality theory (Art. 16, sec. par., New Civil Code) to him. In this case, again the domiciliary theory comes
to the rescue, and the court shall apply the law of his domicile or if he has none, the law of the country of his
temporary domicile.

13. May a declaration of Philippine citizenship be made in a petition for naturalization?

 In Comm. of Immigration v. Garcia, L-28082, June 28, 1974, the Supreme Court held that the court, in a
petition for naturalization, cannot make a declaration that the applicant is already a Filipino citizen for the
reason that in this jurisdiction, there can be do independent action for the judicial declaration of ones
citizenship. Courts of justice exist only for the settlement of justiciable controversies, which imply a given
right, legally demandable and enforceable, an act or omission violative of said right, and a legal remedy for the
breach of said right.

14. May a declaration of Philippine citizenship be made in a special proceeding for correction of
entry under Rule 108 of the Rules of Court?

In a long line of cases, the Supreme Court formerly held that since a petition under Rule 108
contemplates a summary proceeding, substantial errors like citizenship cannot be corrected therein. However,
this ruling has already been superseded by subsequent cases (Tolentino v. Paras, 122 SCRA 526; Rep. v. Valencia,
141 SCRA 462; Rep. v. Belmonte, 158 SCRA 173, among others) to the effect that if all procedural
requirements of Rule 108 are followed and all persons with interest in the wrong entry had been notified and
a full blown trial is held, the proceedings are no longer summary but adversarial, and substantial errors like
citizenship can already be corrected under Rule 108.

15. Who are citizens of the Philippines under the 1987 Constitution?

Art. IV, Sec. 1 of the 1987 Constitution enumerates the citizens of the Philippines as follows:
(l) Those who are citizens of the Philippines at the time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon
reaching the age of majority; and
(4) Those who are naturalized in accordance with law.

16. Who were citizens of the Philippines under the 1973 Constitution?

Art. Ill, Section l (l) of the 1973 Constitution provides that the following are citizens of the
Philippines:

(l) Those who are citizens of the Philippines at the time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of 1935;
and
(4) Those who are naturalized in accordance with law.

17. Since the 1973 Constitution considers as Filipino citizens those who were such at the time of the
adoption of said Constitution on January 17,1973, who are those referred to in said provision?

They are those enumerated in Art. IV, 1935 Constitution, to wit:

(1) Those who are citizens of the Philippines at the time of the adoption of the Constitution of the
Philippines;
(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this
Constitution, had been elected to public office in the Philippine Islands;
(3) Those whose fathers are citizens of the Philippines;
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect
Philippine citizenship;
(5) Those who are naturalized in accordance with law.
18. Differentiate the citizenship of children born of Filipino mothers and alien fathers under the 1935
Constitution, from those born of Filipino mothers and alien fathers under the 1973 and 1987
Constitutions.

While the 1935 Constitution considers as Filipino citizens at birth or as natural-born citizens only
those whose fathers were Filipinos at the time of their birth, while those born of Filipino mothers and alien
fathers still had to elect Philippine citizenship upon reaching majority before they could be Filipino citizens,
this injustice to children of Filipino mothers (who are really Filipinos because Filipino blood flows through
their veins) was later corrected by the 1973 and 1987 Constitutions, which already consider as natural-born
citizens those born of Filipino mothers, even if the fathers were aliens. In other words, those born after the
effectivity of the 1973 Constitution on January 17, 1973 of Filipino mothers but of aliens fathers are already
Filipinos at birth without need of electing Philippine citizenship.

19. In the case of election of Philippine citizenship under the 1935 Constitution, as of what time
should the mother be a Filipino? At the time of her marriage to an alien, at the time of the childs
birth, or at the time of the childs election upon reaching the age of majority?

At the time of the mothers marriage to an alien. For if we require the mother to be a Filipino at the
time of the childs birth, very few children will be benefited by the provision because the mother would have
already become an alien at the time of her marriage (following the husbands alien citizenship) and before the
childs birth. Likewise, if we require that the mother should be a Filipino citizen at the time of the child's
election, again very few children would be able to elect, because their mothers would have already become
aliens when they got married to their alien husbands and long before the birth of the children.

20. Where do you find the law providing for election of Philippine citizenship under the 1935
Constitution?

The law is Commonwealth Act No. 625.

21. Who were Filipino citizens at the time of the adoption of the 1935 Constitution on May 14, 1935?

(1) Those born in the Philippines who resided therein on April 11, 1899 (the date of the ratification
of the Treaty of Paris between the U.S. and Spain) and were Spanish subjects on that date, unless they
had lost their Philippine citizenship on May 14, 1935;

(2) Natives of the Spanish Peninsula who resided in the Philippines on April 11, 1899, and who did
not declare their intention of preserving their Spanish nationality between that date and October 11, 1900
(the time provided for doing so), unless they had lost their citizenship by May 14, 1935;

(3) Naturalized citizens of Spain who resided in the Philippines on April 11, 1899 and who did not
declare their intention of preserving their Spanish nationality between that date and October 11, 1900,
unless they had lost their citizenship by May 14, 1935;

(4) Children born of (l), (2), and (3) subsequent to April 11, 1899, unless they had lost their
Philippine citizenship by May 14, 1935;

(5) Persons who became naturalized citizens of the Philippines in accordance with the procedure set
forth in the Naturalization Law since its enactment on March 22, 1920, unless they had lost their
Philippine citizenship on or before May 14, 1935;

(6) Children of persons embraced in (5), unless they had lost their Philippine citizenship on or before
May 14, 1935;
 (7) Filipino women who, after having lost Philippine citizenship by marriage to foreigners, had
subsequently become widows and regained Philippine citizenship on or before May 14, 1935

(8) Children of (7) who were still under 21 years of age at the time their mothers regained Philippine
citizenship (Roa v. Collector, 23 Phil. 321; Talaroc y. Uy, GR L-5397, Sept. 26, 1952);

(9) Foreign women who, before May 14, 1935, got married to citizens of the Philippines, who might
themselves be lawfully naturalized in the Philippines, unless they had lost their Philippine citizenship on
or before May 14, 1935;

(10) All other persons born in the Philippines who, on the strength of the erroneous application of
the jus soli doctrine in the Roa case, were mistakenly declared by the courts as Filipino citizens, unless they
had lost their citizenship by May 14, 1935. These are citizens by res judicata. (See Tan Chong v. Sec. of Labor,
GR L-47616, Sept. 16, 1947: Talaroc v. Uy, supra).

(Paras, supra, pp. 122-124)

22. Why is the law on election of citizenship under the 1935 Constitution a transitory law?

Because it was effective only as long as there were children of Filipino mothers and alien fathers who
were allowed to elect Philippine citizenship upon reaching 21 years. However, after 1994 (21 years from the
effectivity of the 1935 Constitution), there were no longer those who could elect Philippine citizenship,
because all of them would hare already reached 21 and they either had already elected or did not elect at all, in
which latter case they continued to be aliens following the citizenship of their fathers.

23. Suppose the Filipino mother of a child born under the 1935 Constitution was not legally married
to her alien husband, what is the citizenship of the child?

The child, being illegitimate, followed the citizenship of the mother without need of election. Hence,
the child is a Filipino from birth.

24. What is the citizenship of a Filipino woman who marries a foreigner?

(1) Prior to the 1973 Constitution: If she acquired the nationality of her alien husband, she lost her
Philippine citizenship. Otherwise, she remained a Filipino. Examples are the many Filipinas who
married Chinese husbands legally. Since under the law of China, they followed their husbands
citizenship, they all became Chinese. That is why many Filipinas later opted not to marry their
Chinese husbands legally, so that they would remain Filipinos and their children, being
illegitimate, are also Filipinos.

(2) Under the 1973 Constitution: A female citizen of the Philippines who marries an alien shall
retain her Philippine citizenship, unless by her act or omission, she is deemed, under the law, to
have renounced her Philippine citizenship (Art. Ill, Sec., 2, 1973 Constitution)

(3) Under the 1987 Constitution: Citizens of the Philippines who marry aliens shall retain their
citizenship, unless by their act or omission, they are deemed, under the law, to have renounced
their Philippine citizenship (Art. IV, Sec. 4, 1987 Constitution).

Note: Unlike the similar provision in the 1973 Constitution, the above provision of the 1987
Constitution now applies to both males and females who marry aliens.
25. What is the citizenship of an alien woman who marries a Filipino husband?

(1) In the case of Zita Ngo Burca v. Republic, Jan.20, 1967, it was held that the proper proceeding
wherein an alien woman married to a Filipino can be herself declared a Filipino citizen is a naturalization
proceeding in a court of justice, and that any such declaration by any other office or agency is null and void.

Many Filipinos criticized said ruling, because it imposed more stringent requirements on an alien wife
of a Filipino husband who ordinarily follows the citizenship of the latter, than an applicant for naturalization.
Fortunately, this ruling was later abandoned.

(2) In Moya Ya Lim Yao v. Comm. of Immigration, 41 SCRA 292 (1971), the Supreme Court reversed the
Burca ruling and held that under Sec. 15 of Commonwealth Act No. 473 [the Revised Naturalization Law],
an alien woman marrying a Filipino, native-born or naturalized, becomes ipso facto a Filipino provided she is
not disqualified to be a citizen of the Philippines under Sec. 4 of the same law. This decision in effect ruled
that it is not necessary for the alien wife of a Filipino husband to prove in a court proceeding that she
possesses all the qualifications set forth in Sec. 2 and none of the disqualifications under Sec. 4, both of the
Revised Naturalization Law. It is enough that she proves that she is not disqualified to be a Filipino citizen
not necessarily in court but even before an agency like the Immigration Commission.

Note also that an alien woman married to an alien husband who (the husband) is subsequently
naturalized also follows the Philippine citizenship of her husband, provided she does not suffer from any of
the disqualifications under Sec. 4 of the same Revised Naturalization Law. This is a case of derivative
naturalization (similar to the minor children of a naturalized Filipino citizen).

(3) However, in the recent case of Djumanton v. Domingo, 240 SCRA 746, the Supreme Court held that
there is no law guarantying aliens married to Filipinos the right to be admitted into, much less given
permanent residence in, the Philippines. Entry of aliens into the Philippines and their admission as
immigrants is not a matter of right, even if they are legally married to Filipinos. Marriage of an alien woman
to a husband does not ipso facto make her a Filipino citizen and does not excuse her from her failure to depart
from the Philippine upon the expiration of her extended stay here as an alien.

Note: Unlike the Moya Lim case where the alien woman married to a Filipino husband did not appear
to have any disqualification for naturalization, the alien woman in the above Djumanton case refused to leave
this country even after the expiration of her extended stay here and instead got married to a Filipino,
apparently to avoid her deportation.

26. What is naturalization, and what are the different modes of naturalization?

Naturalization is the process of conferring on an alien the citizenship of another country, by any of
the means provided by law. It is considered not a matter of right but one of privilege and may be enjoyed
only under the precise conditions prescribed by law.

The modes of acquiring Philippine citizenship by naturalization are:

(1) By judicial process in accordance with Commonwealth Act No. 475, as amended by Republic Act
No. 530;

(2) By legislative process; i.e., when Philippine citizenship is conferred by a special act of Congress on
deserving aliens;
 (3) By administrative process, under Rep. Act No. 9139, otherwise known as "The Administrative
Naturalization Law of 2000", approved in 2001. 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. Members of the Committee are the Solicitor General as chairman, and the
Secretary of Foreign Affairs or his representative and the National Security Adviser as members.

Derivative naturalization is Philippine citizenship conferred on: (l) the wife of a naturalized
husband; (2) the minor children of a naturalized father; and (3) the alien wife of a natural-born or naturalized
citizen, in the latter case, the marriage having taken place after husbands naturalization.
Be it remembered that during the period of Martial law, Pres. Marcos issued Letter of Instruction
(LOl) No. 270 providing for naturalization by Presidential Decree. The applicants were screened by a Special
Committee in a summary manner, which then recommended those found eligible for naturalization under
said LOI to Pres. Marcos, who would issue a decree declaring as naturalized Filipino citizens those included
in the list recommended by the Special Committee. Said Committee is similar to the Committee on Natura-
lization created by the recently approved Rep. Act No. 9139.

27. What are the qualifications for judicial naturalization under Sec 2, C.A. No. 473, as amended?

(1) The petitioner must not be less than 21 years of age on the date of the hearing of the petition;

(2) He must have, as a rule, resided in the Philippines for a continuous period of not less than ten
years;

(3) He must be of good moral character, and believe in the principles underlying the Philippine
Constitution, and must have conducted himself in a proper and irreproachable manner during
the entire period of his residence in the Philippines in his relation with the constituted
government as well as with the community in which he is living;

(4) He must own real estate in the Philippines worth not less than P5,000, Philippine currency, or
must have some lucrative trade, profession, or occupation;

(5) He must be able to speak and write English or Spanish and any one of the principal Philippine
languages; and

(6) He must have enrolled his minor children of school age in any of the public or private schools
recognized by the Bureau of Private Schools where Philippine history, government, and civics
are taught or prescribed as part of the school curriculum during the entire period of the resi-
dence required of him, prior to the hearing of his petition for naturalization as citizen.

28. What are the disqualifications for naturalization under C.A. No. 473, as amended?

According to Sec. 4 of said Act, the following cannot be naturalized as Philippine citizens:

(1) Persons opposed to organized government or affiliated with, any association or group of persons
who uphold and teach doctrines opposing all organized governments;
(2) Persons defending or teaching the propriety of violence, personal assault or assassination for the
success and predominance of their ideas;
(3) Polygamists or believers in the practice of polygamy;
(4) Persons convicted of a crime involving moral turpitude;
(5) Persons suffering from mental alienation or incurable contagious disease;
 (6) Persons who, during the period of their residence in the Philippines, have not mingled socially
with the 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; and
(8) Citizens or subjects of a foreign country (other than the United States) whose laws do not grant
Filipinos the right to become naturalized citizens or subjects thereof.

28. What are the qualifications for administrative naturalization under Sec. 3 of Rep. Act 9139?

(1) The applicant must be born in the Philippines and residing therein since birth;

(2) The applicant must not be less than eighteen (18) years of age at the time of the filing of his/her
petition;

(3) The applicant must be of good moral character and believes in the underlying principles of the
Constitution, and must have conducted himself/herself in a proper and irreproachable manner
during his/her entire period of residence in the Philippines in his relation with the duly constituted
government as well as with the community in which he/she is living;

(4) The applicant must have received his/her primary and secondary education in any public school
or private educational institution duly recognized by the Department of Education, Culture and
Sports, where Philippine history, government and civics are taught and prescribed as part of the
school curriculum and where enrollment is not limited to any race or nationality; Provided, that should
he/she have minor children of school age, he/she must have enrolled them in similar schools;

(5) The applicant must have a known trade, business, profession or lawful occupation, from which
he/she derives income sufficient for his/her support and if he/she is married and/or has
dependents, also that of his/her family; Provided, however, That this shall not apply to applicants who
are college degree holders but are unable to practice their profession because 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.

30. What are the disqualifications for naturalization under Rep. Act. 9139?

Sec. 4 of said Act provides that the following are not qualified to be naturalized under the same:

(1) Those opposed to organized government or affiliated with any association or group of persons
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 diseases;
(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 during the period of such
war; and
(8) Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be
naturalized citizens or subjects thereof.

31. How may Philippine citizenship be lost?

Under Commonwealth Act. 63 as amended by Rep. Act. No. 106, 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 to an oath of allegiance to support the constitution or laws of a foreign
country upon attaining twenty-one years of age and more
(4) By rendering service to, or accepting commission in, the armed forces 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 was, unless subsequently, a plenary pardon or amnesty has been granted; and
(7) In the case of a woman, upon her marriage to a foreigner, if by virtue of the laws in force in
her husband's country, she acquires his nationality.

Note, however, that under the 1973 and 1987 Constitutions, the woman in No. (7) above retains her
Philippine citizenship unless by her act or omission, she is deemed under the law to have renounced her
Philippine citizenship.

32. How may Philippine citizenship be reacquired?

Under Sec 2 of Commonwealth Act No. 63, as amended by Rep. Act No. 106, Philippine citizenship
may be reacquired as follows:

(1) By naturalization; Provided, that the applicant possesses none of the disqualifications prescribed in
Sec. 2 of Act No. 2927;

(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; and

(3) By direct act of the National Assembly (now Congress).

33. What is the procedure incident to reacquisition of Philippine citizenship?

Sec. 3 of the same C.A. No. 63, as amended, provides as follows:

The procedure prescribed for naturalization under Act 2927, as amended, shall apply to the
reacquisition of Philippine citizenship by naturalization provided for in the next preceding section; Provided,
That the qualifications and special qualifications prescribed in Sections three and four of said Act shall not be
required; and provided further,
 (1) That the applicant be at least twenty-one years of age and shall have resided in the Philippines at
least six months before he applies for naturalization;

(2) That he shall have conducted himself in a proper and irreproachable manner during the entire
period of his residence in the Philippines, in his relations with the constituted government as well
as with the community in which he is living; and

(3) That he subscribes to an oath declaring his intention to renounce absolutely and perpetually all
faith and allegiance to the foreign authority, state or sovereignty of which he was a citizen or
subject.

34. How about repatriation? How can it be effected?

Sec. 4 of the same Commonwealth Act referred to above provides that "Repatriation shall be
effected by merely taking the necessary oath of allegiance to the Republic of the Philippines and registration
in the proper civil registry."

During the regime of Pres. Marcos, however, he promulgated P.D. 725 providing that the petition
for repatriation should be filed with the same committee which he created for naturalization, and said
committee had the power to approve or disapprove the repatriation.

Chapter VIII.

THE DOMICILIARY THEORY

1. What is the domiciliary theory in Conflict of Laws?

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

2. Define 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" (Story, Conflict of Laws, sec. 41).

It is the place where a person has a settled connection for certain legal purposes, either because his
home is there or because that is the place assigned to him by law" (First Restatement, sec. 9).

"For the exercise of civil rights and fulfillment of civil obligations, the domicile of natural persons is
the place of their habitual residence." (Art. 50, New Civil Code).

3. Are "domicile" and "residence" the same?

" x x x it is an established principle in Conflict of Laws that 'domicile' refers to the relatively more
permanent abode of a person while 'residence' applies to a temporary stay of a person in a given place" (Koh v.
C.A., 70 SCRA 298)

Residence is used to indicate a place of abode, whether permanent or temporary; 'domicile' denotes
a fixed, permanent residence to which, when absent, one has the intention of returning. A man may have a
residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled
with intention to remain for an unlimited time. A man can have one domicile for one and the same purpose
at any time, but he may have numerous places of residence. (Uytengsu v. Rep., 95 Phil. 890)

4. Distinguish "domicile" from "citizenship".

Domicile in general speaks of one's permanent place of abode, while citizenship or nationality
indicates ties of allegiance and loyalty. A person may be a citizen or national of one state and a domiciliary of
another. Filipinos who are immigrants abroad, like the holders of green cards in the U.S., are still Filipino
citizens, but their domicile is the country to where they have permanently migrated.

5. Considering that our country follows the nationality theory, why is it still important for us to know
and study the domiciliary theory?

For several reasons, namely:

(1) In some cases, our own law makes the law of the domicile of a person the controlling factor in
the solution of conflicts cases.

Example: The revocation of a will done by a person outside the Philippines by a person who
does not have his domicile in the Philippines is valid when done according to the lex loci celebrationis,
or according to the law of the place of the testator's domicile at the time. (Art. 829, New Civil Code)

(2) Sometimes, our law makes either the law of one's nationality or that of his domicile as the
controlling factor.

Example: The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this Code prescribes." (Art. 816, id.)

(3) In the case of stateless individuals, or those with dual or multiple nationalities, the domiciliary
theory runs to the rescue of the nationality theory.

(4) During the early years of American colonization of the Philippines, our Supreme Court in some
cases applied the domiciliary theory, like the case of the validity of a divorce decree obtained abroad.

(5) Citizens of countries like the U.S. or Great Britain, which follow the domiciliary theory, may
become involved in litigation in our country, which follows the nationality theory.

(6) Again, some great countries like the U.S. and Great Britain follow the domiciliary theory, so that
it would do well for us to make a comparative study of the nationality and domiciliary theories.

6. What law determines ones domicile, his national law or the lex fori?

The prevailing rule is that the forum applies its own concept of domicile in determining the domicile
of a litigant before its courts.

7. What are the different kinds of domicile?

(a) Domicile of origin: The domicile assigned by law to a person at the moment of his birth.
(b) 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.
 (c) 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.

Note: Domicile of origin is acquired at birth; therefore, it never changes. While constructive
domicile is given after birth to those who lack capacity to choose their own domicile, like minors, insanes, etc.

Also, domicile of origin never changes, for a person is born only once, while constructive domicile
may change from time to time, like when the parents of a minor change domicile several times.

Both domicile of origin and constructive domicile are, however, assigned by law, while domicile of
choice is the result of .the voluntary will and action of the person concerned.

8. State some basic principles regarding one's 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:
(a) residence or bodily presence in the new locality;
(b) an intention to remain there(animus manendi); and
(c) an intention not to return to the former abode (animus non revertendi)
(Gallego v Vera, 73 Phil. 453)

9. Give some rules in determining one's domicile of origin.

(1) If the child is legitimate, his domicile of origin is that of his parents at the time of his birth; if the
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, since the
effects of legitimation retroacts to the time of the childs birth (Art. 180, Family Code).

(2) The domicile of origin of an adopted child is the domicile of his real parents at the time of his
birth, not the domicile of the adopters

(3) The domicile of origin of a foundling is the country where it was found.

10. Give some rules in determining ones constructive domicile.

(1) Minors

(a) If legitimate, the domicile of both parents.

In case of disagreement, that of the father, unless there is a judicial order to the contrary
(Art. 211, Family Code).
(b) If illegitimate, the domicile of the mother (Art. 176, Family Code).
 (c)In case of absence or death of either parent, the domicile of the present parent. Even in
case of the remarriage of the surviving parent, still his/her domicile determines the constructive
domicile of the minor child.
(d) If the child is adopted, the domicile of choice of the adopter is the child's constructive
domicile.

(2) Insanes, idiots, imbeciles

Since insanes and other mentally incapacitated persons cannot select their own domicile, the
law assigns their domicile to them.
(a) If they are below the age of majority, the rules on minors apply to them.
(b) If they are of age and have guardians, they follow the domicile of choice of their
guardians. If they have no guardians, their constructive domicile is their domicile of choice before
they became insane.

(3) Married women -

(a) If the marriage is valid;

(i) 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 (Art.
69, Family Code).
(ii) If there is legal separation between the spouses, the wife can have her own
domicile of choice.
(iii) If there is separation de facto, the wife can also have a separate domicile (De la
Vina v. Villareal, 41 Phil.13).

(b) If the marriage is voidable: Apply the same rules as when the marriage is valid.
However, after annulment, the wife can freely select her own domicile of choice.

(c) If the marriage is void: Since there is really no marriage in this case, the wife can have a
domicile separate form the husband.

(4) Other persons-

(a) Convict or prisoner - He is not free to have a domicile of choice, so his domicile is the
one he had possessed prior to his incarceration.

(b) Soldiers - Since they are compelled to follow the dictates of the military, their domicile is
their domicile before their enlistment.

(c) Public officials or employees abroad like diplomats, consular officials, etc. Since their stay
abroad is in their official and not in their personal capacity, 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 IX.

THE SITUS OR ECLECTIC THEORY

1. What is meant by the situs or eclectic theory?

 Under the situs or eclectic theory, the capacity, condition, status, or capacity of a person is 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.

However, this theory distinguishes two kinds of participation of the individual concerned.

(a) If his participation is active, i.e., when he does the act voluntarily, the governing law is -the law of
the actual situs of the transaction or event.

(b) If the participation is passive, as 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.

Example: The marriage between two Filipinos in Hongkong.

(a) Since the act of getting married is voluntary, the validity of the marriage is governed by its
actual situs, or the lex loci celebrationis (Art. 26, first par., Family Code)

(b) With respect to the rights and obligations, and property relations, of the Filipino couple,
however, they are governed by the national law of the spouses, which regulates or fixes such matters
between them; in other words, the legal situs is the national law of the spouses. (Art. 80, Family
Code)

2. If the act or transaction involves property, real or personal, what theory do we apply, the
nationality theory, the domiciliary theory, or the situs theory?

Art. 16, first par., of the New Civil Code provides that real property as well as personal property is
subject to the law of the country where it is situated. Thus, if the act or transaction involves property,
whether real or personal, the law that determines the validity of the transaction is the lex situs or lex rei sitae.
Even the capacity of the parties to the transaction is governed by the lex situs or lex rei situs, not by the lex
nationalii or the lex domicilii.