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PRIL - Part 3 - Personal Law - Nationality and domicile., Grounds allowed…

- - - - A. Definition -
        
        B. Legislative Jurisdiction Distinguished from Judicial Jurisdiction - Status once established, is given universal jurisdiction pursuant to the basic principle of universality.
        
        The particular status brought into existence by the law of country A must have attributed to it by country B the self-same personal capacity or incapacity, the self-same rights and duties, which country A conferred or imposed upon that person, natural or artificial.
        
        The court of country B can introduce into that status no exceptions or qualifications unknown to the status of its creation unless they are bound to by some definite and protected rule of municipal law.
        
        C. Beginning and End of Personality -
        
        D. Name - Originally, according to Beale, Determination of name is not a problem of status because a person is traditionally free to assume a name and change it at will.
        
        E. Age of Majority and Capacity
        
        F. Absence - Domestic laws of various countries do not treat absentees alike.
        
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        Age of Majority - Individual’s personal law determines whether he has attained the age of majority.
        
        Legal disability attached to minority and rights recognized upon attainment of age of majority are aspects of personal status.
        
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        Modern Approach - Name cannot be changed without judicial intervention, as name is determined by law.
        
        Aliens - Dedepends on alien's personal law as well.
        
        Governing PH laws (NCC 364-366; 376) -
        
        Article 364. Legitimate and legitimated children shall principally use the surname of the father.
        
        Article 365. An adopted child shall bear the surname of the adopter.
        
        Article 366. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent.
        
        Article 367. Natural children by legal fiction shall principally employ the surname of the father.
        
        Article 368. Illegitimate children referred to in article 287 shall bear the surname of the mother.
        
        Article 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father.
        
        Article 370. A married woman may use:
        
        (1) Her maiden first name and surname and add her husband's surname, or
        (2) Her maiden first name and her husband's surname or
        (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs."
        
        Article 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless:
        
        (1) The court decrees otherwise, or
        (2) She or the former husband is married again to another person.
        
        Article 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation.
        
        Article 373. A widow may use the deceased husband's surname as though he were still living, in accordance with article 370.
        
        Article 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion.
        
        Article 375. In case of identity of names and surnames between ascendants and descendants, the word "Junior" can be used only by a son. Grandsons and other direct male descendants shall either:
        
        (1) Add a middle name or the mother's surname, or
        (2) Add the Roman numerals II, III, and so on.
        
        Article 376. No person can change his name or surname without judicial authority.
        
        Article 377. Usurpation of a name and surname may be the subject of an action for damages and other relief.
        
        Article 378. The unauthorized or unlawful use of another person's surname gives a right of action to the latter.
        
        Article 379. The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped.
        
        Article 380. Except as provided in the preceding article, no person shall use different names and surnames.
        
        Beginning - Determination of beginning is referred to individual’s personal law.
        
        Examples:
        
        German CC: upon completion of the person’s birth.
        
        Spanish CC: must be alive for at least 24 hours.
        
        3. PH CC -
        
        Article 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. (29a)
        
        Article 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a)
        
        Status of the Foetus - Prior to birth, not a person. However, Expectancy that it will be born, thus the law affords it protection.
        
        Its legal existence, if it should be born alive, retroact to the moment of its conception.
        
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        Extinguishment - Extinguished by death. Declaration of death by a competent court is considered valid for all purposes.
        
        Effect of Succession - Some rights and obligations are extinguished by death but others are transmitted to his heirs/successors.
        
        Personality of an Estate Limjoco v. Intestate Estate of Fragrante: -
        
        Purpose of an estate as an artifical person is to enable proper disposition of the assets of the deceased.
        
        Bill of Rights makes no distinction between natural and artificial persons as to the due process clause and the right against unreasonable searches and seizures.
        
        Pending application for a CPC is a right that survived the decedent’s death.
        
        Estate can still be considered the applicant for such CPC.
        
        Aliens - can sue and be sued in the PH subject to PH procedural law.
        
        But their status and capacity is to be determined by our courts using their personal law.
        
        Legislative - The ability of a state to promulgate laws and enforce them on all persons and property within its territory.
        
        Judicial - the power or authority of a court to try a case and render judgment and execute it in accordance with the law.
        
        Personal Status - General term, including both condition and capacity. Specifically embraces matters such as:
        
        Beginning and end of Human personality
        
        Capacity to have rights in general
        
        Capacity to engage in legal transactions
        
        Protection of personal interests
        
        Family relations
        
        Transactions of family law - Marriage, divorce, separation,a adoption, legitimation, emancipation
        
        Succession
        
        Capacity - Presence of both under NCC 37 produces complete civil capacity.
        
        Juridical Capacity - Fitness of a man to be the subject of legal relations
        
        Inherent in every natural person, lost upon death
        
        Capacity to act - the power to do acts with juridical effects.
        
        May be lost.
        
        CIL Rules -
        
        Filipinos - This is governed by the nationality principle
        
        Aliens - May refer to their national law, either lex nationalii or domicile law.
        
        Origin - Roman doctrine of Status libertates (freedom), status civitates (citizenship), status familiae (position as head of house or, free person subject to pater familia)
        
        No exact meaning as modern law does not recognize absolute legal characteristics inherent in every person
    - - B. Merits and Demerits of Domicile as Connecting factor - Generally, suitable for common law countries and those with a federal system of government.
        
        Common Law - because it satisfies the purpose of having a personal law as the relationship between an individual and the place where he establishes his permanent home provides for an adequate basis for him to exercise rights therein and the state to impose duties on him.
        
        Federal Systems - Since the law of the domicile is the law of the place where the individual lives.
        
        C. General Rules on Domicile
        
        D. Kinds of Domicile
        
        Domicile of Origin - Domicile of parents at the time of BIRTH, not the place of birth.
        
        Domicile of Choice
        
        Constructive Domicile
        
        E. Compared with Habitual Residence - Child abduction case
        
        One is a resident of a place from which his departure is indefinite as to time, definite as to purpose.
        
        Temporary home.
        o Residence is an act. Domicile is an act coupled with an intent.
        § May have residence in one state and domicile in another.
        
        Habitual residence - Actual Residence + Settled Purpose (Sufficient degree of continuity, need not be indefinite)
        
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        Domicile of Origin - Person's domicile at birth.
        
        Traditionally, a legitimate child's domicile of origin is that of his father
        
        Illegitimate Child - That of his mother
        
        However, upon emancipation, the child may acquire the domicile of choice.
        
        Domicile of Choice/Voluntary Domicile - The place freely chosen by a person sui juris (of one's own right"). Here, there must be a concurrence of the following:
        
        Physical Presence
        
        Unqualified intention to make that place one's home
        
        Constructive Domicile/Domicile of Dependency - By operation of law, a domicile is assigned to persons incapable of choosing their own domicile. This usually covers the following:
        
        Minors - domicile automatically changes when father’s domicile changes. if no father, then mother, if no mother, then person exercising parental authority (FC 212)
        
        Mentally disabled - presumed that they cannot acquire a domicile of choice because of inherent inability to decide where to make his home.
        
        But if it is shown that the person is capable of understanding his act and its consequences, he may be able to acquire a domicile of choice.
        
        Married women - Based on archaic principle of unity of spouses, thus, wife presumed to take the domicile of the husband.
        
        FC 69 now provides that husband and wife shall fix the family domicile. But, no case yet deciding a controversy over the wife’s right to establish her own domicile.
        
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        Special Problems in Domicile of Choice vis-à-vis Constructive Domicile - This applies to two categories:
        
        People Under Compulsion - This is because freedom of choice is indispensable for determining whether a domciile of choice has been secured.
        
        Thus, conventional view is that a person who is under compulsion is, in that place not as a result of his own volition such as prisoners, military personnel, etc.,
        
        Recent US Decisions overturn this, if intent to remain after compulsion is removed, the person is able to acquire a domciile of choice. Compulsion is one of the factors used to determine whether intent exists. Otherwise, this would curtail a constitutionally protected liberty to choose domicile.
        
        Married women seeking to acquire domicile separate from their husbands.
        
        Traditional View - Domicile follows husband, but, where the unity of husband and wife is dissolved, there can be a different domicile for the wife.
        
        Modern View - Each party is free to establish his/her domicile independent of the other. Wife does not need to show that the husband gave cause for divorce/legal separation to be able to fix her own domicile.
        
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        Points of Distinction -
        
        Presumption - Domicile of origin enjoys presumption in favor of continuance; its character is more enduring, its hold stronger, less easily shaken off
        
        Condition for Abandonment -
        2a. Domicile of origin is not lost by mere abandonment, remains until replaced by domicile of choice
        2b. Domicile of Choice is acquired upon concurrence of animo et facto (The intent coupled with the fact, as in a change of domicil ), deemed extinguished by removal of intent even prior tot he acquisition of a new domciile.
        
        Capacity for Revival Doctrine - The domicile of origin is presumed to be revived once the domicile of choice is given up and before a new one is acquired.
        
        Beth: This has been criticized for violating principle that a person retains his domicile until a new domicile of choice is secured.
        
        Possible Exception - Where the person whose domicile is in question was en route to his domicile of origin.
        
        Permanence of Abode - Issue that has persistently cropped up in issues of domicile of choice. Thus, intention has been phrased in a negative way i.e., so long as there is no intention to return tot he old domicile, a new domicile is created, regardless of basis of intent (e.g.,., for life, indefinitelty, etc,.) Furthermore, length of time is irrelevant after new domicile has been selector and entered upon
        
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        Constant Domicile - No person shall be without domicile Thus, domicile of origin prevails until a person acquires a new domicile.
        
        Only One - A person cannot have two simultaneous domiciles, since its purpose is to establish a connection between the person and a definite legal system
        
        Beth Comment: In practice, courts may have different notions of domicile and may attribute differing meanings for different purpose e.g., a domiciliary of the state for the purpose of obtaining a divorce may not be a domiciliary for the purpose of running for office.
        
        Thus, should be a person can have only one domicile for a given purpose or given time under the law of a particular state, but it should not be assumed that that determination will be binding on other states or, on the same state for other purposes.
        
        Connection - Domicile establishes a connection between a person and a particular territorial unit.
        
        Burden of Proof - Whoever alleges that there has been a change of domicile has the burden of proving the same.
        
        Otherwise, courts will resolve in favor of continuance of an existing domicile.
        
        Residence and Domicile - Some laws use the term residence synonymous with domicile, such as in instances for eligibility to vote or run for office.
        
        Requisites for Change of Domicile (Marcos-Romualdez v. COMELEC) -
        
        an actual removal from domicile;
        
        a bona fide intention of abandoning the former domicile and establishing a
        new one; and
        
        acts which correspond with purpose
        
        Demerits -
        
        Need for Courts - Domicile is not ascertainable without first resorting tot he courts to establish whether or not there is animo manendi
        
        Difference in Definitions - Domicile differs in usage/definition between states. Some states use residence and domicile the same, others do not.
        
        Attenuated Connection - If the law of the domicile of origin is given overriding significance, same issue as nationality i.e., why should the law imposed at birth, independent of one's personal choice be given such weight?
        
        Application in the PH -
        
        GR - Nationality law theory
        
        XCPN - Choice instances where domicile is used
        2a. Stateless/Multiple Nationalities
        2b. Alien Litigants - Where the litigant is an alien who comes from a country following the domiciliary principle, his personal status, capacity, condition and family rights are governed by the law of his domicile.
        2c. Alien Wills - Where an alien DOMICILED in the PH executes a will abroad, alien may follow the law governing formalities of the will in accordance with the laws of his domicile
        2d. Foreign Revocation of Wills - Revocation of a will outside the Philippines, the validity of the revocation must be in accordance with the law of the domicile of the testator as provided for by NCC 829
      - Municipal Law - NCC 50 - . For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. (40a)
        
        Conflict of Laws Definition -
        
        Restatement - The 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.
        
        Justice Story - The place of his true, fixed permanent home and principal establishment and to which, whenever he is absent, he has the intention of returning.
        
        Technical meaning - There must be a concurrence of
        
        Intention to make domicile
        
        Physical Presence
        
        In contrast, residence requires bodily presence in an given place only.
  - - - C. Problems in Applying the Nationality Principles -
        
        Dual or Multiple Citizenship - Here, individuals may be claimed by two or more states as a national.
        
        Statelessness - This can refer to either:
        
        De Jure - Individuals who have been stripped of nationality by their former government, without having an opportunity to acquire another.
        
        De Facto/Refugees - Individuals with a nationality, but their country does not give them protection outside of their own territory.
        
        Republic Act No. 9225 or the Citizenship Retention and Re-Acquisition Act of 2003
        
        Reacquisition - those who got naturalized in a foreign country before the act
        
        Retention - Persons who naturalized in another country after passage of the act
        
        Derivative Citizenship - Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines.
        
        Qualification Requirement - Stateless persons can be naturalized if they possess all the qualifications, without the requirement of reciprocity.
        
        Global Efforts Re: Statelessness -
        
        1951 Geneva Convention on the Status of Refugees;
        
        UN Conference on the Elimination of Reduction of Future Statelessness;
        
        1961 Convention on the Reduction of Statelessness, which enumerates conditions under which an individual would not lose his nationality, prohibits states from depriving their nationals of their identity as punishment or a discriminatory instrument, and remedies the situation of children born without acquiring any nationality.
        
        Objective is to remedy the situation of children born without acquiring any nationality.
        
        Occurs when a child is born in a jus sanguinis jurisdiction of parents whose national laws follow jus soli.
        
        Jus sanguinis country would have to extend nationality to a person born within its territory if he would otherwise be stateless.
        
        Jus soli country would extend its nationality to a person who would otherwise be considered stateless when one of his parents is a citizen of the contracting state.
        • Stateless persons can be naturalized if they possess all the qualifications, save that of reciprocity.
        
        Children at Risk of Statelessness -
        
        Foundling (Poe Llamanzares) - Deemed a natural citizen.
        
        Unregistered Children - lack of registration, then no documents, then
        
        Children of Philippine Descent in Migratory Settings - Such as Sabah or middle eastern countries.
        
        How Arising - Under the Hague Convention on Conflict of National Laws, each state determines who its own nationals are. Any question as to whether or not a person possesses the nationality of a state shall be determined in accordance with that State's internal law.
        
        How Resolved; Principle of Effective Nationality - Otherwise known as the Nottehbohm principle. The national must prove a meaningful connection to the state in question. That principle had previously been applied only in cases of dual nationality to determine the nationality that should be used in a given case.
        
        In the Philippines - Philippine Constitution discourages dual/,multiple nationalities, Constitution, Art. IV, Sec. 5 provides that dual allegiance is inimical to national interest and shall be dealt with by law.
        
        Examples -
        
        Child - Child born of parents, nationals of a country applying the jus sanguinis principle, in a country applying the jus soli princinple has dual nationality.
        
        Spouse - Filipino citizen -> Marries alien -> may acquire citizenship of spouse if the spouse's national law applies. Furthermore, said citizen retains PH Citizenship unless renounces via taking an oath of allegiance tot he spouses country or, express renunciation.
        
        Republic Act No. 9225 or the Citizenship Retention and Re-Acquisition Act of 2003
      - Determination of Nationality - Each state has the authority to determine its own nationals.
        
        Natural-Born Citizens - Two governing principles:
        
        Jus soli – law of the place of one’s birth; used in many common law countries.
        
        Jus sangguinis – rule of descent or blood; articulated in the Constitution. This applies in the Philippines.
        
        Citizens by Naturalization - Naturalization refers to a process by which an alien nationality, after birth is afforded nationality by the means provided by law.
        
        Procedure for Naturalization - In the PH, applicable law is CA 473, as amended by RA 530.
        
        Disqualification -
        
        Crimes involving moral turpitude – acts of baseness, vileness or depravity in the private and social life in general, contrary to the accepted and customary law of right and duty between men. This is considered contrary to honesty, modesty or good morals.
        
        Qualifications - must have the following qualifications, and none of the disqualifications:
        
        Not less than 21 years old on the date of the hearing of the petition.
        
        Must have resided in the Philippines for a continuous period of not less than 10 years.
        
        Of good moral character, believes in the principles underlying the Constitution, conducted himself in a proper and irreproachable manner during the entire period of residence in the Philippines in his relations with the government as well as with the community.
        
        Must own real estate in the Philippines worth not less than P5,000, or must have some lucrative trade, profession or lawful occupation.
        
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        Presumption of Qualification - Naturalization is a privilege, not a right. Thus, law must be strictly construed against the applicant. However, burden of proof applies as follows:
        
        GENERAL RULE: State has the burden of proving disqualification of an applicant.
        
        EXCEPTION: SC has held in some cases that the applicant has the burden have proving that he has none of the disqualifications.
        
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        Martial Law Procedure - Instituted under Letters of Instruction, No. 270
        
        Summary administrative inquiry;
        
        No filing of declaration of intention, income requirements;
        
        Speak and write Filipino, English or Spanish and any principal Filipino language.
        
        Special committee recommends issuance of a Decree to qualified applicants to the President.
        
        Procedure for Naturalization -
        
        Filing of declaration of intention, unless exempted;
        
        Filing of petition for naturalization;
        
        Publication in the OG or newspaper of general circulation, hearing;
        
        If petition approved, rehearing two years after promulgation of judgment awarding naturalization;
        
        Oath-taking (allegiance to support and defend the Constitution and the laws).
        
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        Loss of Philippine Citizenship (CA 63, as amended by RA 106 -
        
        Naturalization in Foreign Countries
        
        Express Renunciation of Citizenship
        
        Subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more, subject to certain exceptions
        
        Rendering service to, or accepting commission in, the armed forces of a foreign country, subject to certain exceptions
        
        Having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted
        
        In the case of a woman, upon her marriage to a foreigner, if the by virtue of the laws in force in her husband’s country, she acquires his nationality
        
        Cancellation of the certificate of naturalization
        
        Certificate of Naturalization (CA 473, Sec. 18) - Upon motion by SolGen/representative, naturalization certificate may be cancelled on the following grounds:
        
        If it is shown that said naturalization certificate was obtained fraudulently or illegally.
        
        If the person naturalized shall, within the five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his permanent residence there: Provided, That the fact of the person naturalized remaining for more than one year in his native country or the country of his former nationality, or two years in any other foreign country, shall be considered as prima facie evidence of his intention of taking up his permanent residence in the same;
        
        If the petition was made on an invalid declaration of intention;
        
        If it is shown that the minor children of the person naturalized failed to graduate from a public or private high schools recognized by the Office of Private Education of the Philippines, where Philippine history, government and civics are taught as part of the school curriculum, through the fault of their parents either by neglecting to support them or by transferring hem to another school or schools. A certified copy of the decree cancelling the naturalization certificate shall be forwarded by the clerk of the Court to the Office of the President and the Office of the Solicitor General;
        
        If it is shown that the naturalized citizen has allowed himself to be used as a dummy requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right, franchise or privilege.
        
        Grant of Certificate; Non-Res Judicata -
        
        Estoppel/res judicata cannot be invoked against a decree directing the issuance of a certificate of naturalization—it is a mere grant of political privilege.
        
        If it was obtained fraudulently or illegally, the certificate may be cancelled.
        
        Definition (Co v. Electoral Tribunal) - Those who do not have to perform any act to perfect or acquire Filipino citizenship.
        
        Presumption (Aznar v. COMELEC) - There is a presumption of citizenship if a party is born to a Filipino parent
        
        Art. 2 of the Hague Convention on Certain Questions Relating to the conflict of nationality law provides that
        
        Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.
        
        PH Laws (Sec. 1, Art. IV, 1987 CONST.) -
        
        Those who are citizens of the Philippines at the time of the adoption of this Constitution;
        
        Those whose fathers or mothers are citizens of the Philippines;
        
        Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and
        
        Those who are naturalized in accordance with law.
    - - Importance in the Philippines - Serves as a conflict of law theory, by virtue of which jurisdiction over the particular subject matter affecting a person, such as status of a natural person, is determined by the latter's nationality.
        
        National Law Theory - Provides that the nationality or citizenship of the individual that regulates his civil status, capacity, condition, family rights and duties, laws on succession and capacity to succeed.
        
        Form in the Philippines - Found in NCC 15, taken from Spanish Civil Code 9, which in turn was taken from the Code Napoleon. founded on French Revolution and Italian struggle for national identity which underscored notion that individuals' private rights should be determined not by his physical location but by his political allegiance.
        
        Article 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (9a)
      - Merits -
        
        Link - Nationaity was used to establish the requisite link between an individual and the state.
        
        This is because Laws of each state were presumed to be made for an ascertained population. Lawmakers have considered physical and moral qualities of these citizens, thus laws should apply to them where they are.
        
        Verification - An individual's nationality was easily verifiable from documents (National ID, Birth Certificate, Passports)
        
        Demerits -
        
        Stateless/Multiple Nationalities - nationality as a criterion for personal law does not solve problems relating to stateless/multiple nationality individuals.
        
        Diverse Legal Systems - States with diverse legal systems such as USA means there is no single national law.
        
        Disconnect of Identity - persons who have lived in another country for most of their lives means unreasonable for national law to govern them, since nos hared sense of identity or belonging with that state.

Section 4. Who are disqualified. - The following cannot be naturalized as Philippine citizens:

Persons opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments;

Persons defending or teaching the necessity or propriety of violence, personal assault, or assassination for the success and predominance of their ideas;

Polygamists or believers in the practice of polygamy;

Persons convicted of crimes involving moral turpitude;

Persons suffering from mental alienation or incurable contagious diseases;

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;

Citizens or subjects of nations with whom the United States 2and the Philippines are at war, during the period of such war;

Citizens or subjects of a foreign country other than the United States 3whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof.