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CONFLICTS OF LAW

Report on
MARRIAGE
and
ADOPTION

Submitted by:
Gail F. Navarra
Paul Roderick Ronato
Mishella Cuntapay

Submitted to: Atty. Randy Villaluz


Family Code of the
Philippines
define
Marriage as

Article 1. MARRIAGE
is 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 law. (Family Code)
VALIDITY OF MARRIAGE
FC Art. 26.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. (17a)

Where a marriage between a Filipino citizen


and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have
capacity to remarry under Philippine law.
What are the rules for marriages entered
into by Filipinos in foreign countries?

All marriages solemnized outside the


Philippines under the laws in force in
the country where they were
solemnized, and valid there as such,
are also be valid in this country,
except those prohibited under Articles
35 (1), (4), (5) and (6), 36, 37 and
38.
Loci celebrationis marriages abroad which are
valid in the country where the marriage is
celebrated Abroad are valid in the Country Where the
marriage is celebrated are valid in the Philippines
, except the following marriages:
1.Contracting Parties below 18 year old even with parental
consent;
2. Those bigamous or polygamous marriage not falling Article
41;
3. Those contracted through mistake of one of contracting
party as to the identity of the other;
4.Those subsequent marriages that are void under Article 53.
5.A marriage contracted by any party who, at the same time
of celebration,, was psychological incapcititated to comply
with essential marital obligations of marriage, even if such
incapacity becomes manifest only after its solemnization.
6. those which are incestuous, whether the relationship
between the parties be legitimate or illegitimate, between
ascendants and descendants of any degree and between
brothers and sisters, whether of the full or half-blood.
Marriages void from the beginning by reason of Public
Policy, namely:

1.Between collateral blood relatives, whether


legitimate or illegitimate, up to fourth civil degrees.
2.Between step parents and step children;
3.Between parents in-law and children-in-law
4.Between the adopting parent and the adopted child;
5.Between the surviving spouse of the adopting parent
and adopted child
6.Between the surviving spouse of the adopted child and
the adopter
7.Between the adopted child and a legitimate child and
a legitimate child of the adopter
8.Between adopted children of the same adopter; and
9.Between parties where one, with the intention to
marry the other, killed that other persons spouse
or his or her own spouse.
For Filipinos residing or travelling
abroad and who want to get married, who
can solemnize the marriage?

The consul-general, the consul, or vice-


consul of the Republic of the Philippines
can solemnize the marriage.
VALIDITY OF MARRIAGE

Article 2 provides that a marriage


is valid if these Essential
Requisites are present:

(1) Legal capacity of the


contracting parties who must be a
male and a female; and

(2) Consent freely given in the


presence of the solemnizing
officer.
What are the formal requisites of marriage?

The formal requisites of marriage according to


Article 3 are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases


provided for in Chapter 2 of this Title; and

(3) A marriage ceremony which takes place with


the appearance of the contracting parties before
the solemnizing officer and their personal
declaration that they take each other as husband
and wife in the presence of not less than two
witnesses of legal age.
Where a marriage between a Filipino
citizen and a foreigner is validly
celebrated and a divorce is
afterwards validly obtained abroad by
the alien spouse capacitating him or
her to remarry, the Filipino spouse
has the capacity to remarry under
Philippine law. (Article 26, as
amended by Executive Order 227)
CONSEQUENCES OF MARRIAGE
1. Rights and obligations between husband
and wife;
2. property relations between husband and
wife;
3. the family, which embraces the family as
an institution and the family home;
4. paternity and affiliation;
5. adoption
6. support
7. parental authority
8. emancipation and age of majority
9. summary judicial proceedings in the
family law.
General Rule : Philippine Laws will govern
all incidents of marriage, except where the
parties are foreigners and the country where
they are citizens follow the domiciliary
rule, with respect to the consequences of
marriage.

Conflicts of laws problems may arise where


the marriage is celebrated abroad.

General Rule: the state usually gives the


same incidents to a foreign marriage that it
gives to a marriage contracted within its
territory.
Foreigners who wish to marry in the Philippines are
required to obtain a certificate of legal capacity to
marry issued by diplomatic or consular
representatives of their country. This is in
accordance with the first paragraph of Article 21 of
the Family Code of the Philippines, which states:

When either or both of the contracting parties are


citizens of a foreign country, it shall be necessary
for them before a marriage license can be obtained,
to submit a certificate of legal capacity to contract
marriage, issued by their respective diplomatic or
consular officials.
Japan Family Law
Article 731 to 737 of the Japanese Civil Code
stipulates the following requirements: The male
partner must be18 yearsof age or older and
the female partner must be 16 yearsof age or
older. A person who is under20 yearsof age
cannot get married in Japan without a parent's
approval.

This marriage even allowed in Japan


cannot be recognized in the Philippines
since 16 years old in the Philippines has
No legal capacity to get married even with
consent of parents.
Countries where same sex marriage is legal
The Netherlands(2000)
Brazil(2013)
Belgium(2003)
England and Wales(2013)
Canada(2005) France(2013)
Spain(2005) New Zealand(2013)
South Africa(2006) USA (June 26, 2015)
Norway(2009) Uruguay(2013)

Sweden(2009) Luxembourg(2014)
Scotland(2014)
Argentina(2010)
Finland:(signed 2015,
Iceland(2010)
effective 2017)
Portugal(2010)
Ireland:(2015)
Denmark(2012)
Can a person marry a person of the same
sex in our country?

No. The law clearly states that the


contracting parties must be a male and a
female. Marriages between persons of the
same sex are not valid and are not
recognized in the Philippines.

Any male or female of the age of eighteen


years or upwards not under any of the
impediments mentioned in Articles 37 and
38, may contract marriage.(Article 5 of
the Family Code)
MARRIAGE SETTLEMENT; LAW GOVERNING

property relationship during


marriage can be fixed before
spouses enter into the contract
of marriage:
1.Absolute community
2.Conjugal partnership of gain
3.Complete separation of property
4.Any other regime
General Rule: In the absence of such
marriage settlement or when the
regime agreed upon is void, the system
of absolute community applies.

ABSOLUTE COMMUNITY shall consists of


all the property owned by the spouses
at the time of the celebration of the
marriage or acquired thereafter,
except those specifically excluded
therefrom under Article 92 and 93 of
the Family Code.
Article 92
The following shall be excluded from the community
property:
(1) Property acquired during the marriage by
gratuitous title by either spouse, and the
fruits as well as the income thereof, if any,
unless it is expressly provided by the donor,
testator or grantor that they shall form part of
the community property;
(2) for personal and exclusive use of either spouse.
However, jewellery shall form part of the
community property;
(3) acquired before the marriage by either spouse
who has legitimate descendants by a former
marriage, and the fruits as well as the income,
if any, of such property.(201a)
Article 93

Property acquired during the marriage is


presumed to belong to the community,
unless it is proved that it is one of
those excluded there from.(160)
CONJUGAL PARTNERSHIP OF GAINS
The husband and wife place in a
common fund the proceeds, products,
fruits and income from their separate
properties and those acquired by
either or both spouses through their
efforts or by chance, and upon
dissolution of the marriage or of the
partnership. The net gains or benefits
obtained by either or both spouses
shall be divided equally between them,
unless otherwise agreed in the
marriage settlements.
Complete Separation of Property

The following shall be the exclusive


property of each spouse:

1. That which is brought to the marriage


as his or her own;
2. That which each acquires during the
marriage by gratuitous title;
3. That which is acquired by right of
redemption, by barter or by exchange
with property belonging to only one of
the spouses; and
4. That which is purchased with exclusive
money of the wife or of the husband
Article 80 of family code

In the absence of a contrary stipulation in a


marriage settlement, 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.

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 its
extrinsic validity.
1st exceptions: Marriage settlements of
property are usually govern by the national
law of the aliens. The National law of the
husband become the dominant law in
determining the property relations of the
spouses and this rule applies in mixed
marriages, in which case the national law of
the wife is subordinated to that of the
husband.

2nd and 3rd should be read in relation to


Article 16 of the Civil Code which provides
that Real property as well as personal
property is subject to the law of the country
where it is situated which embodies the
doctrine of Lex rei sitae.
FOREIGN MARRIAGES HAS TO BE
AUTHENTICATED

Foreign Judgment may be accorded such


evidentiary value, it must be proved
either by an official publication or
a copy thereof attested by the
officer having legal custody of the
document, accompanied by a
certificate of authentication of a
Philippine Consular representative
and by a seal of his office.
To prove Foreign Marriage, two things
must be proved, namely:

1. the existence of the foreign law on


marriage as a question of fact;

2. the alleged foreign marriage by


convincing evidence. Without proofs
of said requisites, the foreign
marriage cannot be recognized in
the country.
Rule 132 Rules of Court

Section 24. Proof of official record.The record


of public documents referred to in paragraph (a)
of Section 19, when admissible for any purpose,
may be evidenced by an official publication
thereof or by a copy attested by the officer
having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept
in the Philippines, with a certificate that such
officer has the custody. If the office in which
the record is kept is in foreign country, the
certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in
the foreign country in which the record is kept,
and authenticated by the seal of his office. (25a)
Section 25. What attestation of copy
must state.Whenever a copy of a
document or record is attested for
the purpose of evidence, the
attestation must state, in substance,
that the copy is a correct copy of
the original, or a specific part
thereof, as the case may be. The
attestation must be under the
official seal of the attesting
officer, if there be any, or if he be
the clerk of a court having a seal,
under the seal of such court.
ADOPTION
It is a juridical act, a proceeding in rem,
which creates between two persons a
relationship similar to that which results
from legitimate paternity and filiation.
The relationship established by adoption is
limited solely to the adopter and the
adopted and does not extend to the
relatives of the adopting parents or of the
adopted child, except only as expressly
provided for by law.
LOCAL AND FOREIGN
ADOPTION
Adoption may be granted in our country or in
a foreign country.
The courts apply local laws in determining
whether they will grant petitions for adoption.
An adoption rendered in a state having
judicial jurisdiction under the rule of 78 will
usually be given the same effect in another
state as is given by the other state to a
decree of adoption rendered by its own
courts.
Rule 78 of the Restatement
of Laws
Jurisdiction to grant an adoption
A state has power to exercise judicial
jurisdiction to grant an adoption if:
a) it is the state of domicile of either the
adopted child or the adoptive parent, and
b) the adoptive parent and either the
adopted child or the parent having legal
custody of the child are subject to its
personal jurisdiction
Foreign adoption is valid in our
country
The Philippines recognizes the
principle that a foreign adoption,
which is valid in the country where it
is rendered, is valid in the country
and will be recognized, except where
public policy or the interests of its
inhabitants forbid its enforcement
and demand the substitution of the
lex fori.
Ramirez Mercida v Aglubay
The issue raised is whether or not an adoption
in Madrid, Spain by a Spanish citizen of a
Philippine citizen can be registered with the
local civil registry.
Held: Private international law offers no obstacle
to recognition of foreign adoption. This rests on
the principle that the status of adoption, created
by the law of a state having jurisdiction to
create it, will be given the same effect in
another state as is given by the latter state to
the status of adoption created by its own laws.
Law that determines jurisdiction.

The statute in force at the time of the


commencement of the action
determines the jurisdiction of the
court.
Subsequent amendment of the law
will not divest the court of
jurisdiction.
As long as the petition is sufficient in
form and substance, the court
acquires jurisdiction and retains it
Nature of adoption
proceedings
It is in rem. Hence, constructive
notice by publication is sufficient
notice to parents of the person to be
adopted where the parents are
unknown.
The court needs to have jurisdiction
over the subject matter, the parties,
and the res
(personal status of the person to be
adopted and the adopter).
Ellis v Republic
The court held that if the person
adopting is an alien who is not
domiciled in the Philippines, he
cannot adopt because he is a non
resident foreign, over whose personal
status the court cannot acquire
jurisdiction.
RA 8043 (inter-country adoption) now
allows aliens and Filipino citizens
permanently residing abroad to
Effects or consequences of adoption
(a) Parental Authority
All legal ties between biological parents and adoptee are
severed, and the same shall be vested on the adopter, except if
the biological parent is the spouse of the adopter.
(b) Legitimacy
The adoptee shall be considered legitimate son/daughter of the
adopter for all intents and purposes, and shall be entitled to all
the rights and obligations provided by law to legitimate children
born to them without discrimination of any kind.
(c) Succession
Adopter and adoptee shall have reciprocal rights of succession
without distinction from legitimate filiation, in legal and
intestate succession. If adoptee and his/her biological parents
had left a will, the law on testamentary succession shall govern.
Laws on adoption; how
construed
Philippine laws are the governing laws
applied by local courts to determine
whether to grant adoption.
Main purpose of adoption: promotion of the
welfare of the children. The law should be
construed liberally. Except:
a) Violate the proscription against judicial
legislation
b) Inferences beyond the contemplation of
the law and jurisprudence
(d) Use of surname
An adopted child has the obligation and the
right to use the surname of the adopter.
First name shall remain unless change of
name is included and prayed for in the
petition for adoption has been granted by
the court.
(e) Citizenship
Does not confer upon the adoptee the
citizenship of the adopter.
PHILIPPINE LAW ON ADOPTION
Republic act no. 9523, march 12, 2009
(an act requiring certification of the department of
social welfare and development to declare child legally
available for adoption as a pre-requisite for adoption to
proceedings, amending for this purpose certain
provisions of ra 8552, ra 8043, and pd 603, and for other
purposes)
Republic act no. 8552, February 25,1998
(an act establishing the rules and policies on the
domestic adoption of Filipino children and for other
purposes
.
Republic act no. 8043 june 5, 1995 (inter-
country adoption act)
PRESIDENTIAL DECREE 603 ( THE CHILD AND
YOUTH WELFARE CODE)
AMENDED BY Executive order no. 91 (SIGNED
BY FORMER PRESIDENT CORAZON AQUINO ON
DECEMBER 17, 1986, REGARDING NON-
RESIDENT ALIENS WHO WERE ALLOWED TO
ADOPT UNDER PD 603)REPEALED BY TITLE VII
OF THE FAMILY CODE
Who may adopt.
THE FAMILY CODE AND NEW RULE ON ADOPTION
ALLOW AN ALIEN TO ADOPT, THUS:
(2) ANY ALIEN POSSESSING THE SAME QUALIFICATIONS As above-
stated for Filipino nationals: provided, that his country has diplomatic
relations with the republic of the Philippines, that he has been living in
the Philippines for at least three (3) continuous years prior to the filing
of the petition for adoption and maintains such residence until the
adoption decree is entered, that he has been certified by his diplomatic
or consular office or any appropriate government agency to have legal
capacity to adopt in his country, and that his government allows the
adoptee to enter his country as his adopted child. Provided, further,
that the requirements on residency and certification of the aliens
qualification to adopt in his country may be waived for the following:

(i) A former Filipino citizen who seeks to adopt a
relative within the fourth (4th) degree of
consanguinity or affinity; or

(ii) One who seeks to adopt the legitimate child of


his Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks


to adopt jointly with his spouse a relative within
fourth (4th) degree of consanguinity or affinity of
the Filipino spouse.

3. The guardian with respect to the ward after the termination of


the guardianship and clearance of his financial accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) If one spouse seeks to adopt the legitimate child of one spouse
by the other spouse; or
(ii) if one spouse seeks to adopt his own illegitimate child;
provided, however, that the other spouse has signified his
consent thereto; or
(iii)if the spouse are legally separated from each other.
In case husband and wife jointly adopt or one spouse adopts the
illegitimate child of the other, joint parental authority shall be
exercised by the spouses.
(sec.4, new rule on adoption)
Who may be adopted
1. any person below eighteen (18) years of age who has been voluntarily
committed to the department under articles 154, 155 and 156 of pd 603
or judicially decLARED AVAILABLE FOR ADOPTION;
2. THE LEGITIMATE CHILD OF ONE SPOUSE, BY THE OTHER SPOUSE;
3. AND ILLEGITIMATE CHILD , BY A QUALIFIED ADOPTER TO RAISE THE
STATUS OF THE FORMER TO THAT OF LEGITIMACY;
4. A PEROSN OF LEGAL AGE REGARDLESS OF CIVIL STATUS,IF PRIOR TO
THE ADOPTION, SAID PERSON HAS BEEN CONSISTENTLY CONSIDERED
AND TREATED BY THE ADOPTERS AS THEIR OWN CHILD SINCE MINORITY;
5. A CHILD WHOSE ADOPTION HAS BEEN PREVIOUSLY RESCINDED;
6. A CHILD WHOSE BIOLOGICAL OR ADOPTIVE PARENTS HAVE DIED;
PROVIDED, THAT NO PROCEEDINGS SHALL BE INITIATED WITHIN SIX (6)
MONTHS FROM THE TIME OF DEATH OF SAID PERSONS.
7. A CHILD NOT OTHERWISE DISQUALIFIED BY LAW OR OR THESE RULES.
WHO MAY NOT BE ADOPTED
ARTICLE 187. THE FOLLOWING MAY
NOT BE ADOPTED:
1. A PERSON OF LEGal age , unless
he or she is child by nature of the
adopter or his or her spouse, or,
prior to the adoption, said person
had been consistently considered
and treated by the adopter a his
or her own child during minority;
2. an alien with whose government
domestic adoption
Petition
Filing
Publication
Case study
Initial hearing
Presentation of evidence
Certificate of finality
Civil registrar-nso
continuous changes, limitations and
amendments of Philippine law on adoption

FOR PROTECTION OF THE WELFARE


OF THE ADOPTEE, AND THE
ADOPTERS AS WELL.
MEASURES OF PROTECTION OF
THE ADOPTERS WHO ARE
RELATIVES BY CONSANGUINITY IN
FOURTH DEGREE
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