REPORT in CONFLICTS OF LAW

REPORT in CONFLICTS OF LAW

By: Rachel Ann Katrina Abad and Rachel Bernadette Chua

A report on the Law on Domicile and Principle on Personal Status and Capacity

Vice Dean Marciano Delson -- Professor

1/30/2014

THE LAW OF DOMICILE

Report by: Rachel Ann Katrina P. Abad

4B AY 2013-2014

INTRODUCTION

Conflict of laws (or private international law or international private law as it is sometimes known) is a set of procedural rule that determines which legal system and which jurisdiction apply to a given dispute. The rules under conflict of laws apply when a legal dispute has a foreign element such as a contract agreed to parties in different countries.

There are some certain concepts which are important or are regarded as a determinative factor in the conflict of laws. Such concepts include; domicile and nationality.

The developments of technology and mobility from one state or another brought the emergence of problems. This is because in the process of moving about, an individual has to determine which law applies to him, his marriage, his business transactions, etc.

The development of passports came about in a bid to solve this problem. Passports act as a connection to a legal jurisdiction, which people carry about wherever they go.

DEFINITION: DOMICILE

The municipal law concept of Domicile as stated under Article 50 of the New Civil Code provides: the domicile of natural persons is the place of their habitual residence. Or judicial persons, it is determined by the law creating or recognizing it.

On the other hand, the conflicts of law definition provides that it is tha place with which a person has a settled connection for certain legal purposes, either because his home is there or because that place is assigned to him by law.

ELEMENTS

Physical presence

Animus manendi - intention of returning there permanently

**The law of the forum governs the standards of domicile. If domicile is put in issue, the court will apply its own laws to determine the controversy.

DOMICILE AND NATIONALITY

Domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave permanently (that is to say, if that person has not yet moved to a different state, or has not yet formed an intention to remain there indefinitely). LORD CHELMFORD in WAICKER V HUME[1] in defining domicile said,

That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special or temporary purpose but with a present intention of making it his permanent home...

The concept of domicile is not uniform throughout the world. To civil lawyers in Europe who do not apply common law, it means habitual residence. While at common law it is regarded as equivalent to a persons permanent home

Domicile is what is termed in private international law as a connecting factor which connects an individual with a system of law for the purposes of determining a range of matters, principally related to his status or property. For example, in the circumstances below, domicile is said to be a connecting factor

.Legal capacity to marry

.Personal capacity to make a will

.Formal validity of a will

.Jurisdiction of the court in proceedings for divorce

Nationality on the other hand is a relationship between an individual and a country (to which a person owes his allegiance to). Nationality normally confers some protection of the individual by the state and some obligations on the individual towards the state. Where the state and country is federated into separate legal systems the two (domicile and nationality) will be different. But where the country is federated into separate legal systems the two will be different.

NATIONALITY AND DOMICILE CONTRASTED

Domicile can be distinguished from nationality in that one can have a dual nationality but not more than one domicile at a time as it was held in the case of ODIASE V ODIASE[2].

Every person as well must have a domicile as was seen in the case of UDNY V UDNY[3]. Unlike nationality no person can be without a domicile even if stateless.

Nationality represents a mans political status, by virtue of which he owes allegiance to some particular country; domicile indicates his civil status and it provides the law by which his personal rights and obligations are determined. Nationality depends, apart from naturalisation, on the place of birth or on parentage; domicile is constituted by residence in a particular country with the intention of residing there permanently. It follows that a man may be a national of one country but domiciled in another.DOMICILE AND RESIDENCE

Residence - the actual relationship of an individual to a certain place; physical presence of a person in a given area, community or country

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 ma have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute domicile. (Romualdez-Marcos vs. COMELEC, G.R. No. 119976, Sept. 18, 1995)

RULES ON DOMICILE

1. no person can never be without domicile

2. A person cannot have two simultaneous domicile

3. A natural person 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 domicile

6. To acquire a new domicile of choice, the following must concur:

a. Residence in the new locality

b. Intention to remain there

c. Intention not to return to the former abode

TYPES OF DOMICILE

The rules for determining domicile in common law jurisdictions are based on case law in origin. However, as time went on, different jurisdictions altered some aspects of the common law rules by statute, details of which may vary from one jurisdiction to another. The common law rules have however survived in most jurisdictions and are outlined below.

1. DOMICILE OF ORIGIN

Dicey states the common law rule as thus;

Every person receives at birth a domicile of origin,

a) A legitimate child born during the lifetime of his father has his domicile of origin in the jurisdiction in which his father was domiciled at the time of his birth.

b) A legitimate child not born during the lifetime of his father or an illegitimate child has his domicile of origin in the jurisdiction in which his mother was domiciled at the time of his birth.

c) A foundling has his domicile of origin in the jurisdiction in which he was found.

A domicile of origin is attributed by law to every person at birth. There is no necessary connection between the place of birth and the domicile of origin.

A domicile of origin is more tenacious than a domicile of choice. It is more difficult to prove that it has been abandoned. The point of domicile of origin ensures that everyone has one domicile and only one domicile at all times. If a person leaves the country of his domicile of origin, intending never to return to it, he continues to be domiciled there until he acquires a domicile of choice in another country. But if a person leaves the country of his domicile of choice, intending to never return to it, he ceases to be domiciled in that country unless and until he acquires a new domicile of choice, his domicile of origin revives.

The domicile of origin acts as a fall-back; whenever there is no other domicile, it comes to fill the gap.

In BELL V KENNEDY[4], per Lord Westbury- The domicile of origin adheres until a new domicile is acquired.

The following are some rules in determining ones domicile of origin:a. if the child is legitimate, his of origin is that of his parents at the time of his birth; If the parents are separated, the domicile of the custodial parent.b. If the child is illegitimate, his domicile of origin is that of the mother at the time of his birth.

c. If the child is legitimated, the domicile of his father at the time of his birth controls, since the effects of legitimation retroact to the time of the childs birth.

d. If the child is adopted, the domicile of his real parents at the time his birth.

e. If the child is a foundling, it is the country where it was found.

2.DOMICILE OF DEPENDENCE

This is also known as domicile by operation of law. This type of domicile concerns dependent persons. The domicile of a dependent person is the same as and changes (if at all) with the domicile of the person on whom he is, as regards his domicile, legally dependent. Until he reaches the age of maturity (which maybe the age of sixteen[9]), a legitimate childs domicile depends on and changes with the domicile unless, both parents being alive, the child has his home with his mother and no home with his father. An illegitimate child or a legitimate child whose parents are both living but who lives wholly with his mother has a dependent domicile coincident to that of his mothers current domicile. A child whose father is dead takes his domicile of dependence from his mother however, unless he has a home with her, his domicile of dependence does not automatically change with hers. A child whose parents are dead should be domiciled where the person on whom he is dependent is domiciled (however there is no authority for this[10]). At birth, a child receives two domiciles, origin and dependence, which are initially, in the vast majority of cases, the same. The domicile of origin will be overlaid by the domicile of dependence. While the domicile of origin remains constant throughout life, the domicile of dependency changes with the domicile of the person on whom the child is domiciliary dependent. The idea is that, as far as possible, there should be unity of domicile between the child and its parents.

Married Women

Until 1 January 1974, there were three categories of dependent persons; children, married women and mentally disordered persons. Married women ceased to be dependent persons on 1 January 1974 by virtue of section 1(1) of Domicile and Matrimonial proceedings act 1973. This act however, did not change the position of women married before this date because the act was not retroactive.

Mentally Disordered Persons

A mentally disordered person cannot acquire a domicile of choice; he retains the domicile he had when he began to be legally treated as such. However, if he was born mentally disordered or he becomes mentally disordered while a dependent child, his domicile is determined so long as he remains mentally disordered, as if he continued to be a dependent child.

.Prisoners

A prisoner normally retains his domicile. But he can form an intention to reside permanently or indefinitely: in which case he acquires a domicile there. .

Members of the armed forces

Unless a person intends to change his domicile, he does not acquire a domicile by entering the armed forces or lose the one he has upon his entering.

.Employees

If a person goes to a country merely to work, he retains his domicile and does not acquire a domicile of choice there. Except where he does not only go there to work, but also to settle in it, he acquires a domicile of choice. Thus, where a barrister with an English domicile of origin was appointed Chief Justice of Ceylon, and he went to Ceylon intending to stay there until he earned his pension, he retained his English domicile[13].

.Diplomats

Like every other case, where diplomats do not form the intention of settling in the country to which they have been accredited they do not acquire a domicile there. But if they do form an intention to reside there permanently, they acquire a domicile of choice.

.Persons liable to deportation

Such a persons residence will be precarious and so he is unlikely to be able to form an intention to remain. But if he forms the necessary intention he acquires the domicile of choice.

Once a person has acquired a domicile of choice he does not lose it merely because a deportation order has been made against him[11]. He loses it only when he is actually deported.

.Refugees and fugitives

A person who leaves a country as a political refugee, as a fugitive from criminal justice, or in order to evade his creditors, has a special reason for leaving it, but has no special motive for entering another country nor is his residence in any other country in any sense enforced. If the fugitive intends to abandon his domicile in the first country, the acquisition of a new domicile in the second country will be readily assumed.

If a political refugee intends to return to the country from which he fled as soon as the political situation changes, he retains his domicile there unless the desired political change is so improbable that his intention is discounted and treated merely as an exiles longing for his native land; but if his intention is not to return to that country even when the political situation has changed, he can acquire a domicile of choice in the country to which he has fled.

In the case of a fugitive from criminal justice, the intention to abandon his domicile in the country from which he has fled will be readily assumed, unless perhaps the punishment which he seeks to escape is trivial, or by the laws of that country a relatively short period of prescription bars liability to punishment[12]. Similarly, a person who leaves a country to escape his creditors may lose his domicile there; but if he intends to return as soon as he has paid or otherwise got rid of his debts, there is no change of domicile.

.Invalids

It has been objected that person who resides in a country for the sake of his health does not acquire a domicile. This is because;

a) The residence has been taken up for a special motive;

b) It may not be freely chosen.

These factors make it improbable that a domicile has been acquired. If someone goes to a country for treatment, he clearly does not acquire a domicile there. But where he settles in a new country because he believes he will enjoy better health there may well intend to live there permanently.

3.DOMICILE OF CHOICEEvery independent person can acquire a domicile of choice by the jurisdiction of residence and intention of permanent or indefinite residence but not otherwise. According to the DOMICILE AND MATRIMONIAL PROCEEDINGS ACT, every person in the world who is over the age of sixteen and is not mentally incapable is able to acquire a domicile of choice by residing in one country with the present intention of making it his permanent home. Thus there are two important requirements, namely; fact and intention. They are normally referred to as factum and animus. Factum is fact or residence, while animus is intention. A person can therefore abandon a domicile of choice in a jurisdiction by ceasing to reside there (fact) and by ceasing to reside there either permanently or indefinitely (intention). That is to say leaving animus non revertendi

Residence for the purpose of domicile has a very wide meaning and its function is to a great extent evidential in character thus, no particular length of residence is required. But long residence in a country will a raise the inference that a person intended to remain there and this may be so strong as to be impossible to rebut. However, long period of absence does not necessarily destroy a domicile of choice and may not do so even if there is indecision about a possible return. Thus in RE LLOYDS EVANS[5], a Belgian domiciliary who had fled to England died before he had decided to return to Belgium or emigrate to Australia. He was held to be domiciled in Belgium.

The requirement of intent is more exacting and important in domicile. In WINANS V ATTORNEY GENERAL[6], Winans had lived a remarkable life in the manner of the heroes of the Victorian age. Born in Baltimore, he spent much of his life in Europe and lived in England for the last 37 years of his life. He built railways in Russia and helped that country against England in the Crimean war by making gunboats. He had an obsession to develop his Baltimore property into a seaport, equip it with ships of his own special design and capture the worlds carrying trade for the United States at the same time putting an end to the Rule Brittanica. His hatred of Britain eventually convinced the House of Lords that despite his long residence there, he lacked the intention to acquire a domicile in England. A similar decision was held in the case of RAMSAY V LIVERPOOL ROYAL INFIRMARY[7].

However it has been submitted that the two cases are extremely unsatisfactory as they put too much emphasis on the desires, however unrealistic, of the person in question rather than what he proposed to do.

In contrast to the case above, the case of WHITE V TENANT[8], where a family were moving house and this involved crossing a state line. Having put their belongings in the new house the family returned to their old state to spend the night with family as the new house was not yet ready to inhabit. When the father died during the night the court decided that he died domiciled in his new state not the old one.

Thus, once it can be established that the intention to make the country of residence the permanent home exists, the fact that the residence was not freely chosen and could be ended by compulsory relation is irrelevant.

CONCLUSION

Domicile is the most significant connecting factor in conflict of laws. It has a dominating role in family and matrimonial property law and a role in other areas such as capacity of persons to make contracts. It plays a part also in the law of taxation.

Domicile is an idea of law[14]

Domicile of origin cannot be lost as such. Everyone is born with a domicile of origin, which remains (if only in abeyance). Even when a domicile of choice is acquired, the domicile of origin will remain as a resource to fill up any gap when a domicile of choice is abandoned.

A domicile of choice can be abandoned by a person when he or she ceases to reside in a country and ceases to intend to reside there permanently or indefinitely. When a domicile of choice is abandoned either a new domicile of choice is acquired, or the domicile of origin revives by operation of law.

It should be noted that the most important factor in acquiring a domicile of choice is intention (animus). The act of moving may occur but most times it does not necessarily mean that the person intends to move.

REFERENCES:

[1] (1885) ALL ER 824

[2] (1965)NNLR 196 similarly held in the INLAND REVENUE COMMISSIONER V BULLOCK (1976) 1 WLR 1178 at1184

[3] (1869) L.R 1 S.C & D 117-441 also MARK V MARK

[4] (1868) L.R1 SC & DIV 307

[5] (1947) CH 695C/F RE FLYNN(1968) 1 ALL ER 49

[6] (1910)AC 27

[7] (1930) AC 588

[8] 1888 31B W VA 790

[9] According to section 3(1) Domicile and matrimonial proceedings act 1973

[10] Raymond Smith in Conflicts of Law(1993)

[11] Cruh v Cruh(1945) All ER 545

[12] Moynihan v Moynihan(Nos 1 & 2 ) (1997) 1 FLR59-where it was held that M, who had left the UK to avoid arrest on serious fraud charges, had at his death acquired a domicile of choice in the Philippines, where he had lived for 20 years, built up a thriving business, acquired properties, married and had children.

[13] A.G v Rowe (1862) 1 H & C 31

[14] Bell v Kennedy(supra)

CASES:Romualdez-Marcos vs. COMELEC248 SCRA 300 (1995)

Kapunan J:FACTS:

Petitioner Imelda Marcos filed her certificate of candidacy (COC) for the position of Representative of the First District of Leyte. She stated in the COC that she is a resident of the place for seven months. Private respondent Montejo subsequently filed a Petition for Cancellation and Disqualification on the ground that Imelda failed to meet the constitutional requirement of one-year residency. COMELEC granted the Petition for Disqualification, holding that Imelda is deemed to have abandoned Tacloban City as her place of domicile when she lived and even voted in Ilocos and Manila.

ISSUE: Whether or not Imelda is deemed to have abandoned her domicile of origin

HELD:

An individual does not lose his domicile even if he has lived and maintained residence in different places. Residence implies a factual relationship to a given place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to do other things of a temporary or semi-permanent nature does not constitute loss of residence. Thus, the assertion that she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places flies in the face of settled jurisprudence in which this Court carefully made distinctions between (actual) residence and domicile for election purposes.

Northwest Orient Airlines, Inc. vs. CA, G.R. No. 112573, Feb. 9, 1995

FACTS:

Northwest, a US corporation, and Sharp, a Filipino corporation but with a branch in Japan, entered into an agreement whereby the former authorized the latter to sell its air transportation tickets. Sharp, however, was unable to remit the proceeds of the ticket sales, prompting Northwest to sue for collection in Japan. Summons was served on Sharps branch office in Japan but because the manager authorized to receive summons was said to be in Manila, the same was also served on Sharps Manila head office through diplomatic channels. Sharp nevertheless failed to appear during the hearing and judgment was rendered. Northwest now filed a case before the Philippine court to enforce the foreign judgment.

ISSUE: Whether or not the Japanese court acquired jurisdiction over the person of Sharp

HELD:

The domicile of a corporation belongs to the state where it was incorporated. In a strict technical sense, such domicile as a corporation may have is single in its essence and a corporation can only have one domicile which is the state of its creation. Nonetheless, a corporation formed in one state may, for certain purposes, be regarded as a resident in another state in which it has offices and transacts business.

In as much as Sharp was admittedly doing business in Japan through its duly registered branches at the time the collection suit against it was filed, then in the light of the processual presumption, Sharp may be deemed a resident of Japan, and, as such, was amenable to the jurisdiction of the courts therein and may be deemed to have assented to the said courts lawful methods of serving process.

State Investment House, Inc. vs. Citibank, et al, G.R. No. 79926-27, Oct. 17, 1991

FACTS:

Consolidated Mines, Inc. (CMI) obtained loans from Citibank, Bank of America and HSBC, all foreign corporations but with branches in the Philippines. Meanwhile, State Investment House, Inc. (SIHI) and State Financing Center, Inc. (SFCI), also creditors of CMI, filed collection suits against the latter with writs of preliminary attachment. Subsequently, the three banks jointly filed with the court a petition for involuntary insolvency of CMI. SHI and SFCI opposed the petition on the ground that the petitioners are not resident creditors in contemplation of the Insolvency Law.

ISSUE: Whether or not a foreign corporation with a branch in the Philippines and doing business therein can be considered a resident

HELD:

Foreign corporations duly licensed to do business in the Philippines are considered residents of the Philippines, as the word is understood in Sec. 20 of the Insolvency Law, authorizing at least three resident creditors of the Philippines to file a petition to declare a corporation insolvent. The Tax Code declares that the term resident foreign corporation applies to foreign corporation engaged in trade or business within the Philippines as distinguished from a non-resident foreign corporation which is not engaged in trade or business within the Philippines. The Offshore Banking Law sates that: Branches, subsidiaries, affiliates, extension offices or any other units of corporation or juridical person organized under the laws of any foreign country operating in the Philippines shall be considered residents of the Philippines. The General Banking Act places branches and agencies in the Philippines of foreign banks in the category as commercial banks, rural banks, stock savings and loan association making no distinction between the former ad the latter in so far as the terms banking institutions and banks are used in said Act.

PRINCIPLES ON PERSONAL STATUS AND CAPACITY

Report by: Rachel Bernadette Chua

4B AY 2013-2014

Introduction

Let us begin our discussion by defining status and capacity. Interestingly, the word status has no exact meaning and its concept is considered nebulous since modern law does not recognize absolute legal characteristics inherent in every person. Status was taken from the Roman doctrine of status libertates (freedom), status civitates (citizenship) and status familiae (position as head of the house or as free person subject to pater familia)

However in a Supreme Court case, personal status was defined as the general term that includes both condition and capacity, and more specifically embraces such matters as the beginning and end of human personality, capacity to have, capacity to engage in legal transactions, protection of personal interests, family relations, particularly the relations between husband and wife, parent and child, guardian and ward, also transactions of family law especially marriage, divorce, separation, adoption, legitimation and emancipation, and finally succession both testate and intestate. Based on this definition we could see the importance in determining the status of a person as it covers a wide range of topics which affect several rights of a person.

Capacity, which is more often referred to as juridical capacity, is the fitness to be subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act on the other hand is the power to do acts with legal effect is acquired and may be lost. The union of both juridical capacity and a capacity to act produces complete civil capacity.

In the determination of the status and the capacity of a person, Article 15 of the Civil Code follows the nationality principle. This provision applies to Filipino nationals but in cases of aliens, the court may refer to their national law if they belong to a country following the nationality principle or the law of their domicile if they follow the domiciliary principle.

Now that we have given an overview regarding status and capacity we may now discuss its related topics such as personality, the name of a person, age of majority, the effect of absence of a person and the capacity of a person to enter into contracts.

Jurisdiction

In relation to our discussion with regard to status and capacity, we should first determine who has jurisdiction in determining the capacity or status of a person. For this discussion we shall consider two types of jurisdiction, legislative jurisdiction and judicial jurisdiction. Legislative jurisdiction over ones status is the power of his personal law to govern his status wherever he goes, while judicial jurisdiction is the power of the courts to decide questions or controversies concerning ones status.

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.

For example, even if the personal law of the foreigner allows divorce, he cannot apply for divorce from his spouse before 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 favourable judgment from our courts, because it is his national law on legal separation that our courts will apply, but subject to procedural law.

Beginning and End of Personality

The determination of the exact moment personality begins is based on the individuals personal law. In our country Articles 40 and 41 of the New Civil Code applies in determining the beginning of human personality.

Based on the said articles, personality really begins at conception, subject to the following conditions:

a.) The purposes favourable to the fetus; and

b.) If it is born under Article 41 of the New Civil Code.

Depending on the conditions of its birth, there are, therefore, two kinds of children:

a.) Ordinary- with an Intra uterine life of at least 7 months, so long as the child is alive upon complete separation from the mothers womb, it is already with civil personality.

b.) Extraordinary- with an intrauterine life of less than 7 months. In which case it must be alive for at least 24 hours after complete delivery from the mothers womb before it is considered born and to have acquired civil personality.

Tolentino comments that before birth the foetus is not a person, but merely part of the internal organ of the mother. However because of the expectancy that it may be born, the law protects it and reserves its rights, making its legal existence, if it should be born alive, retroact to the moment of tis conception.

An application of this concept was in the case of Geluz v. CA, where the father of an aborted child demanded damages against the abortionist. In the said case the court ruled that sincean action for pecuniary damages on account of personal injury or death pertains to the one primarily injured, pecuniary damages could not be granted because the fetusdid not yet have civil personality and any cause of action that accrued to the unborn child was extinguished by its prenatal death. But for the damages suffered by the parents for the illegal arrest of the normal development of the fetus and on account of the distress and anguish attendant to its loss and the disappointment of their parental expectations, moral damages as well as exemplary damages, if the circumstances should warrant could be awarded.

However, while civil personality is commenced at birth, it is extinguished by death as provided under Article 42 of the New Civil Code. Death, in this article means physical death not civil interdiction which is sometimesregarded as civil death and which merely restricts , not extinguishes the capacity to act. 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.

Interestingly, in the case of Continental Steel v. Montao, the court ruled that a fetus who has not yet acquired juridical personality may nonetheless die under the law. (See case digest for further reference)CASE:

CONTINENTAL STEEL MANUFACTURING CORPORATION v. MONTAO

G.R. No. 182836 October 13, 2009

Facts: Rolando P. Hortillano, an employee of Continental Steel Manufacturing Corporation (CSMC) and and a member of NagkakaisangManggagawang Centro Steel Corporation-Solidarity of Trade Unions in the Philippines for Empowerment and Reforms (Union), filed a claim for Paternity Leave, Bereavement Leave and Death and Accident Insurance for dependent, pursuant to their Collective Bargaining Agreement (CBA). The claim was based on the death of Hortillanos unborn child. Hortillanos wife, Marife V. Hortillano, had a premature delivery on while she was in the 38th week of pregnancy. Continental Steel immediately granted Hortillanos claim for paternity leave but denied his claims for bereavement leave and other death benefits.

The Union argued that Hortillano was entitled to bereavement leave and other death benefits pursuant to the CBA. The Union maintained that Article X, Section 2 and Article XVIII, Section 4.3 of the CBA did not specifically state that the dependent should have first been born alive or must have acquired juridical personality so that his/her subsequent death could be covered by the CBA death benefits.

Continental Steel posited that the express provision of the CBA did not contemplate the death of an unborn child, a fetus, without legal personality. It claimed that there are two elements for the entitlement to the benefits, namely: (1) death and (2) status as legitimate dependent, none of which existed in Hortillanos case. Continental Steel, relying on Articles 40, 41 and 42of the Civil Code, contended that only one with civil personality could die. Hence, the unborn child never died because it never acquired juridical personality. Proceeding from the same line of thought, Continental Steel reasoned that a fetus that was dead from the moment of delivery was not a person at all. Hence, the term dependent could not be applied to a fetus that never acquired juridical personality. A fetus that was delivered dead could not be considered a dependent, since it never needed any support, nor did it ever acquire the right to be supported.

Issue: WON an unborn fetus could die for legal purposes?

Held: YES.The reliance of Continental Steel on Articles 40, 41 and 42 of the Civil Code for the legal definition of death is misplaced. Article 40 provides that a conceived child acquires personality only when it is born, and Article 41 defines when a child is considered born. Article 42 plainly states that civil personality is extinguished by death.

First, the issue of civil personality is not relevant herein. Articles 40, 41 and 42 of the Civil Code on natural persons, must be applied in relation to Article 37 of the same Code. We need not establish civil personality of the unborn child herein since his/her juridical capacity and capacity to act as a person are not in issue. It is not a question before us whether the unborn child acquired any rights or incurred any obligations prior to his/her death that were passed on to or assumed by the childs parents. The rights to bereavement leave and other death benefits in the instant case pertain directly to the parents of the unborn child upon the latters death.

Second, Sections 40, 41 and 42 of the Civil Code do not provide at all a definition of death. Moreover, while the Civil Code expressly provides that civil personality may be extinguished by death, it does not explicitly state that only those who have acquired juridical personality could die.

And third, death has been defined as the cessation of life.Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even a child inside the womb already has life. No less than the Constitution recognizes the life of the unborn from conception,that the State must protect equally with the life of the mother. If the unborn already has life, then the cessation thereof even prior to the child being delivered, qualifies as death.

Likewise, the unborn child can be considered a dependent under the CBA. As Continental Steel itself defines, a dependent is "one who relies on another for support; one not able to exist or sustain oneself without the power or aid of someone else." Under said general definition,even an unborn child is a dependent of its parents. Hortillanos child could not have reached 38-39 weeks of its gestational life without depending upon its mother, Hortillanos wife, for sustenance. Additionally, it is explicit in the CBA provisions in question that thedependentmay be the parent, spouse, orchildof a married employee; or the parent, brother, or sister of a single employee. The CBA did not provide a qualification for thechild dependent, such that the child must have been born or must have acquired civil personality, as Continental Steel avers. Without such qualification, thenchildshall be understood in its more general sense, which includes the unborn fetus in the mothers womb.

Age of Majority

The legal disability attached to minority and rights recognized upon attainment of the age of majority are aspects of personal status. It is the individuals personal law which determines whether he has reached the age of majority.

Republic Act No. 6809 amended Article 234 of the Family Code by reducing the age of majority from 21 to 18 years save the exceptions established by existing law in special cases. However, under the same law, the age of contracting marriage without parental consent has remained at the age of 21.

Also, under R.A. 6809, in cases of torts, parents (if the children live in their company) and guardians are still responsible for damages caused by their children or ward, even if the child is above 18 years old but below 21 years old.

Absence

Under Article 381 of the New Civil Code, absence is considered a special legal status pertaining in Philippine law 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.

The domestic laws of different countries do not treat absentees alike and this has given rise to difficult problems in conflict of laws. There are three suggested ways of dealing with the problem: first, there is a rebuttable presumption that a person is dead when he has been absent for a number of year; second, a persons unexplained absence is judicially investigated and established which results in legal effects similar to those of death; and third, a judicial decree shall have to be issued declaring the person dead before legal effects of death takes place. Philippine laws follow the rebuttable presumption of the common law based on Article 390 and 391 of the New Civil Code. However, for specific purposes, our laws require that a declaration of death be issued before certain legal effects of death arise.

Article 385 of the New Civil Code provides that any of the following may ask for the declaration of ones absence: a.) the present spouse; b.) the heirs instituted in the absentee who may present an authentic copy of said will; c.) intestate heirs, if the absentee left no will; d.) those who may have over the property of the absentee some right subordinated to the condition of his death.

The procedure for the declaration of ones absence is found in Rule 107 of the Revised Rules of Court. However, the judicial declaration of absence shall not take effect until 6 month after the publication in a newspaper of general circulation.

The table below summarizes the provisions of the New Civil Code and the Family Code on the periods when a person may be presumed dead.

PurposePeriod of AbsenceException

Remarriage, based on well founded belief of present spouse (Article 40 Family Code)4 yearsIn case of disappearance where there is danger of death- 2 years

Succession (Rule 107)10 yearsIf absentee disappeared after the age of 75 years- 5 years

All other purposes except succession (Article 390 New Civil Code)7 years

Extraordinary Absence (Article 391 NCC). For all purposes including the division of the estate.

1.) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for 4 years since the loss of the vessel or aeroplance;

2.) A person in the armed forces who has taken part in war, and has been missing for four years; and

3.) A person who has been in danger of death under other circumstances like earthquake, volcanic eruption, landslide, fire, dangerous expeditions etc. and his existence has not been known for four years

4 yearsRemarriage- 2 years under Article 40 of the FC

CASES:

RE: PETITION FOR DECLARATION OF ABSENCE OF ROBERTO L. REYES. ERLINDA REYNOSO REYES v. ALEJANDRO

G.R. No. L-32026 January 16, 1986

Facts:ErlindaReynoso and Roberto L. Reyes were married. Sometime in April 1962 Roberto left the conjugal home due to some misunderstanding over personal matters. Since then Erlinda has not received any news about the whereabouts of her husband. Erlinda filed a petition on October 25, 1969 praying for the declaration of the absence of her husband Roberto, invoking the provisions of Rule 107 of the New Rules of Court and Article 384 of the Civil Code. Erlinda alleged that they have not acquired any properties during their marriage and that they have no outstanding obligation in favor of anyone; that her only purpose in filing the petition is to establish the absence of her husband. The RTC dismissed the petition on the ground that since Roberto L. Reyes left no properties there was no necessity to declare him judicially an absentee.

Issue: WON is it necessary to declare the absence of Roberto?

Held: NO. The need to have a person judicially declared an absentee is when he has properties which have to be taken cared of or administered by a representative appointed by the Court (Article 384, Civil Code); the spouse of the absentee is asking for separation of property (Article 191, Civil Code) or his wife is asking the Court that the administration of an classes of property in the marriage be transferred to her (Article 196, Civil Code). The petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings.

Valdez v. Republic

G.R. No. 180863 September 8, 2009

Facts:Angelita Valdez and SofioPolborosa were married. However they argued often, prompting Sofio to leave their conjugal dwelling on March 1972. Angelita and their child waited for Sofio to return. They eventually decided to return to Angelitas parents house. In October 1975, Sofio showed up. He and Angelita talked for several hours and they agreed to separate. They executed a document to that effect. That was the last time petitioner saw him. After that, Angelita didnt hear any news of Sofio, his whereabouts or even if he was alive or not.

Believing that Sofio was already dead, Angelita married Virgilio Reyes on June 20, 1985.Subsequently, however, Virgilios application for naturalization filed with the United States Department of Homeland Security was denied because Angelitas marriage to Sofio was subsisting.Hence, on March 29, 2007, petitioner filed a Petition before the RTC seeking the declaration of presumptive death of Sofio.

Issue: WON the petition for presumptive death is necessary for purposes of remarriage?

Held: YES.For the purpose of contracting a subsequent marriage under Article 41 of the Family Code, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

It is readily apparent, however, that the marriages of petitioner to Sofio and Virgilio on January 11, 1971 and June 20, 1985, respectively, were both celebrated under the auspices of the Civil Code. Thus Article 83 and 390 of the Old Civil Code should apply. Under the Civil Code, for the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.

People v Roluna

G.R. No. 101797 March 24, 1994

Facts:AbundioRoluna, Carlos Daguing, PaternoDaguing, MamertoAsmolo, TeodulfoDaguing, Federico Simpron, BienvenidoSimpron and DidocBongcalos were charged with the crime of Kidnapping with Murder of AnatalioMoronia. Prosecution witnesses testified that the 8 accused tied up Moronia, while the latter was walking on the human trail, and took him away. Roluna charges that the trial court erred in finding him guilty beyond reasonable doubt of the crime of Kidnapping with Murder. Accused-appellant points and stresses that thecorpus delictiwas not duly proved by the prosecution. He submits,inter alia, that considering that the body of AnatalioMoronia was never found, Moronia's questionable and unexplained absence and disappearance should not be blamed on him for the alleged victim, in all probability, may still be alive.

In its brief, the People contends that the fact of Moronia's death and the culpability of accused-appellant were sufficiently established by the evidence. The People relies on the disputable presumption provided under Section 5 (x) (3), Rule 131 of the Rules of Court, The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

xxxxxxxxx

(3) A person who has been in danger of death under other circumstances and his existence has not been known for four (4) years.

Issue: WON the victim should be presumed dead?

Held: YES. Insofar as thedeath of Moroniais concerned, the fact that he was last seen on May 27, 1984 with his hands tied at the back and accompanied by eight (8) armed men undoubtedly shows that his life was then in danger or peril. Coupled with the fact that Moronia has been absent and unheard from since that time until the trial of this case (or a total of six years), a presumption of death was sufficiently raised. This is in consonance with Section 5 (x) (3), Rule 131 of the Rules of Court. However, the circumstances presented by the prosecution would not be enough to hold accused-appellant responsible for the death of Moronia.

In this case, however, the prosecution witnesses testified that they merely saw one of the accused, Carlos Daguing, tie up the hands of Moronia. He was then taken in the direction of barangay Monterico and was never seen or heard from since. At no point during the trial was it ever established that any of the eight (8) accused beat up Moronia or in any way laid a violent hand on him. Nogalada even testified that he did not hear any shot fired by any of the eight (8) armed accusedso as to warrant a reasonable conclusion that Moronia was killed by accused-appellant or any of his co-conspirators. Indeed, even the possible motive of accused-appellant and his group for abducting Moronia was not definitively established. To be sure, the circumstances proved are insufficient to produce a conviction beyond reasonable doubt for the serious crime of kidnapping with murder.

Name

Professor Beale believed that the determination of an individuals name is not a problem of status since a person is traditionally free to assume a name and change it at will. However, such is no longer the prevalent view as Article 376 of the New Civil Code provides that no person can change his name or surname without judicial authority and the procedure for the change of ones name is Rule 103. In fact it was held in Republic v. CA and Wong a change of name is a special proceeding to establish the status of a person involving his relation with others, that is his legal position in, or with regard to, the rest of the community. In an older case the court stressed the importance of ones name as a reflection of ones paternity which will inevitably affect the status of the child as legitimate or illegitimate. Confusion as regards ones paternity has been held to justify the courts denial of a petition for change of name.

However, Republic Act No. 9048 The Clerical Error Act as amended by R.A. No. 10172 allows the change of name without judicial order. It covers cases involving clerical or typographical errors and change of first name; day and month of date of birth and sex of person when it is patently clear there was a clerical or typographical error or mistake in the entry.

Articles 364-366 of the New Civil Code Lay down the rules that govern the use of surnames of legitimate, illegitimate, legitimated and adopted children; married women; separated and widowed women and even make distinctions between the right of a woman whose marriage has been annulled to use her former husbands name depending on whether or not she gave cause for the annulment of marriage.

Republic Act No. 9255 amending Article 176 of the Family Code, now allows illegitimate children to use the surname of the father if their filiation has been expressly recognized by the father through record of birth appearing in the civil register or when an admission in a public document or private handwritten instrument is made by the father during the latters lifetime.

Regarding Filipino women who have been divorced by their alien husbands under Article 26 of the Family Code, the rule on women whose marriages had been annulled should logically apply to them.

CASE:

IN THE MATTER OF THE PETITION FOR CHANGE OF NAME OF MARIA ESTRELLA VERONICA PRIMITIVA DUTERTE, ESTRELLA S. ALFON v. REPUBLIC

G.R. No. L-51201 May 29, 1980

Facts: Maria Estrella Veronica Primitiva filed a petition praying that her name be changed from Maria Estrella Veronica PrimitivaDuterte to Estrella S. Alfon. She was registered at the local Civil Registrar's Office as Maria Estrella Veronica PrimitivaDuterte On June 15, 1952, she was baptized as Maria Estrella Veronica PrimitivaDuterte at the St. Anthony de Padua Church Singalong, Manila. Her parents are FilomenoDuterte and Estrella Veronica PrimitivaDuterte. However she has been taken cared of by Mr. and Mrs. Hector Alfon. Maria Estrella and her uncle, Hector Alfon, have been residing at 728 J.R. Yulo Street corner Ideal Street, Mandaluyong, Metro Manila for twenty-three (23) years. When petitioner started schooling, she used the name Estrella S. Alfon. She attended her first grade up to fourth year high school at Stella Maris College using the name Estrella S. Alfon. After graduating from high school she enrolled at the Arellano University and finished Bachelor of Science in Nursing. Her scholastic records from elementary to college show that she was registered by the name of Estrella S. Alfon. She has exercised her right of suffrage under the same name. The RTC denied the petition.

Issue: WON the change of name should be granted?

Held: YES. The only reason why the lower court denied the petitioner's prayer to change her surname is that as legitimate child of FilomenoDuterte and EstrellaAlfon she should principally use the surname of her father invoking Art. 364 of the Civil Code. But the word "principally" as used in the codal provision is not equivalent to "exclusively" so that there is no legal obstacle if a legitimate or legitimated child should choose to use the surname of its mother to which it is equally entitled.

In the case at bar, it has been shown that petitioner has, since childhood, borne the name Estrella S. Alfon although her birth records and baptismal certificate show otherwise; she was enrolled in the schools from the grades up to college under the name Estrella S. Alfon; all her friends call her by this name; she finished her course in Nursing in college and was graduated and given a diploma under this name; and she exercised the right of suffrage likewise under this name. There is therefore ample justification to grant fully her petition which is not whimsical but on the contrary is based on a solid and reasonable ground, i.e. to avoid confusion.

Capacity

A persons ability to act with legal effects is governed by his personal law. In countries that follow the nationality principle, like the Philippines, the capacity to contract of a person is governed by his national law and follows him wherever he goes, while in countries like the U.S. and Great Britain that follow the domiciliary theory, ones capacity to contract is governed by the law of his domicile.

The exception in the Philippines are contracts involving real or personal property, in which cases the lexsitus or lexreisitae applies including the capacity of the contracting parties.

For example, a Filipino who owns a piece of property in Florida, USA, wants to donate the said property to a Filipino in the Philippines. For the donation to be valid, the respective capacities of donor and done shall be governed by Florida law, as well as the intrinsic and extrinsic validity of the donation, the subject matter of the donation being in Florida.

CASE:

Pilapil v Ibay-Somera

G.R. No. 80116 June 30, 1989

Facts:Imelda ManalaysayPilapil, a Filipino citizen, and private respondent Erich EkkehardGeiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany.They had one child named, Isabella PilapilGeiling. However, marital discord set in between them and after about three and a half years of marriage, Geiling filed for divorce in Germany. A divorce decree was issued by the German court. More than 5 months, after the divorce decree, Geiling filed an adultery against Pilapil.

Issue: Whether or not the private respondent has the legal standing to file the adultery case?

Held: NO. Applying the ruling in Van Dorn vs. Romillo, Jr., et al.,which ruled that it is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law.Thus, pursuant to his national law, private respondent is no longer the husband of petitioner.

Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit.

Coquiaand Aguiling Pangalangan.Conflicts of Laws, Cases , Material and Comments 2000 ed., p. 238

People v. Bellamas, 73 O.G. 1977

Article 37 of the New Civil Code

Ibid 1

Ibid p. 239

Ibid p. 242-243

Sempio-Dy, Handbook on Conflicts of Law, 2004 ed. p. 84

Ibid

Coquia and Aguiling Pangalangan.Conflicts of Laws, Cases , Material and Comments 2000 ed.,p. 243

2 SCRA 88 (1961)

Ibid 9 p. 244

Ibid 7 p. 84

Coquia and Aguiling Pangalangan, Conflicts of Laws, Cases, Material and Comments, 2000 ed., p. 248

Sempio-Dy, Handbook on Conflicts of Law, 2004 ed. p. 89-90

Conflicts of Laws, Cases , Material and Comments 2000 ed., Jorge R. Coquia and Elizabeth Aguiling Pangalangan.

page 245-246

Sempio-Dy p. 87

G.R. No. 97906, May 21, 1992

Padilla v. Republic 113 SCRA 789 (1982)

Section 1, R.A. 9048, as amended by R.A. No. 10172

Sempio-Dy, Handbook on Conflicts of Law, 2004 ed. p. 93

Ibid p. 90