CHAPTER 15: RESIDENCE AND DOMICILE
PRINCIPLES AND CASES IN PRIVATE INTERNATIONAL LAW:
A PROCEDURAL APPROACH
-oOo-
MARK ANGELO S. DELA PEÑA
To cite this online book, please use the following:
Dela Peña. 2023. "Principles and Cases in Private International Law: A Procedural Approach." Published by Project Jurisprudence - Philippines. Published: September 17, 2023. Link: [Insert link] Last accessed: [Insert date of access].
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CHAPTER 15:
RESIDENCE & DOMICILE
For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence.[1]
When the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercise their principal functions.[2]
Residence and domicile are different concepts in law, except in election law. Under Philippine election laws, the term “residence” is synonymous with the term “domicile,” in that “residence,” if used under election laws, refers to “domicile, i.e., the individual's permanent home or the place to which, whenever absent for business or pleasure, one intends to return. The determination of whether a person has abandoned his/her domicile heavily depends on the attendant facts and circumstances in confirming the individual's intent and actions to carry out this intent.
The term residence simply means actual physical habitation; it is the place where a person is presently at and where s/he may be found. The legally-heavier concept is domicile, which is the legal residence of a person, i.e., his/her permanent home; it is the place which, even if s/he goes somewhere else for study, work, or pleasure, s/he intends to return to and does not intend to abandon.
Dr. Arturo Tolentino,[3] writing on this specific area explained: “In the Civil Code, there is an obvious difference between domicile and residence. Both terms imply relations between a person and a place; but in residence, the relation is one of fact while in domicile it is legal or juridical, independent of the necessity of physical presence.”
If a person has established a home, for example, in Makati City but leaves for Manila City from Monday to Friday for work, thereafter returning to Makati City in the evening of every Friday each week to be with his/her family, it is safe to say that Makati City is his/her domicile. It may also be said that Makati City and Manila City are his/her residences. From this, it can be derived the rule that a person may have two or more residences but can only have one domicile.
Now that the term “residence” is clear, it is important to focus on the concept of “domicile.”
Domicile is classified into three, namely: (a) domicile of origin, which is acquired by every person at birth; (b) domicile of choice, which is acquired upon abandonment of the domicile of origin; and (c) domicile by operation of law, which the law attributes to a person independently of his/her residence or intention.[4]
In Limbona v. Comelec,[5] the Supreme Court pointedly declared that, for a person to successfully effect a change of domicile or to acquire a domicile of choice, there must concur (a) residence or bodily presence in the new locality, (b) a bona fide intention to remain there, and (c) a bona fide intention to abandon the old domicile. In other words, there must be animus manendi in new residence, coupled with animus non revertendi with respect to the former residence. The intent to remain (animus manendi) at or in a domicile must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.[6]
Under these requirements, no specific unbending rule exists in the appreciation of a person’s compliance therewith because the element of intent[7] is an abstract and subjective proposition that can only be determined from the surrounding circumstances. It must be appreciated, too, that, other than intent, actions taken pursuant to the intent, including the consideration of the applicable laws, rules, and regulations, must be given importance.
Jurisprudence, too, has laid out three basic foundational rules in the consideration of residence and domicile issues, namely: (a) first, a man must have a residence or domicile somewhere; (b) second, when once established, it remains until a new one is acquired; and, (c) third, a man can have but one residence or domicile at a time.[8]
An individual does not lose his/her domicile even if s/he has lived and maintained residences 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, in the case of Romualdez-Marcos v. COMELEC,[9] the Supreme Court held erroneous the assertion by the COMELEC that the petitioner whose residence and domicile are in question 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.” This, according to the Court flies in the face of settled jurisprudence in which the distinctions between (actual) residence and domicile for election law purposes have been carefully made.[10]
The place of a citizen’s birth normally marks the starting point of his/her residence and/or domicile. A man may find himself interested in leaving the place of his birth to look for “greener pastures,” as the saying goes, to find a job and to improve his life. Of course, this decision may involve study in other places, practice of his profession, or engagement in business. Comes election time, the same man may desire to return to his native town to cast his vote. After casting his vote, for professional or business reasons, or for any other reason, he may have to leave his native town again in order to pursue the study, profession or business he left his native town for. This strong feeling of attachment or intention to return (also called animus revertendi) to the place of his birth must be overcome by positive proof of abandonment for another.
In the initial steps in the analysis of whether domicile should be considered abandoned, two things must be kept in mind. First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained. Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate: (a) an actual removal or an actual change of domicile; (b) bona fide intention of abandoning the former place of residence and establishing a new one; and (c) acts which correspond with the purpose.[11]
In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to continue. Only with evidence showing concurrence of all three requirements can the presumption of continuity or residence be rebutted, for a change of residence requires an actual and deliberate abandonment, and one cannot have two legal residences at the same time. To effect an abandonment requires the voluntary act of relinquishing a person’s former domicile with an intent to supplant the former domicile with one of her own choosing (domicilium voluntarium).[12]
As to the effects of marriages on domicile, a survey of jurisprudence yields nothing which would suggest that the female spouse automatically loses her domicile of origin in favor of the husband's choice of residence upon marriage. The fixing of the “residence of the family” or a “family home” refers to the actual residence and is in harmony with the intention of the law to strengthen and unify the family, recognizing the fact that the husband and the wife are usually from different domiciles (whether by origin or by choice). This difference could, for the sake of family unity, be reconciled only by allowing the husband to fix a single place of actual residence.[13]
In the case of Poe-Llamanzares v. COMELEC,[14] the Supreme Court held that, when petitioner immigrated to the United States in 1991, she lost her original domicile, which is the Philippines. Respondent COMELEC conceded the facts of bodily presence by petitioner in the Philippines, her alleged new domicile, and her intention to remain in the Philippines. The contention was whether petitioner had an intention to abandon her old domicile, i.e., the United States. To prove such intention to abandon her old domicile, which the Supreme Court found to be overwhelmingly sufficient, she presented evidence that she engaged in the following: selling the house in the United States, taking the children from United States schools to Philppine schools, getting quotes from the freight companies, notifying the United States Post Office of the abandonment of their address in therein, donating excess items in the United States to the Salvation Army, her husband resigning from United States employment right after selling the house, securing Philippine tax identification number, enrolling her children in Philippine schools, buying property in the Philippines, constructing a residence in the Philippines, returning to the Philippines after all trips abroad, and her husband getting employed in the Philippines. The High Court said that, indeed, coupled with her eventual application to reacquire Philippine citizenship and her family's actual continuous stay in the Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it was for good, i.e., with the intention to remain in the Philippines.
There are three requisites to acquire a new domicile: (a) residence or bodily presence in a new locality; (b) an intention to remain there; and (c) an intention to abandon the old domicile.[15] To successfully effect a change of domicile, one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.[16]
There have been cases, however, in which the Supreme Court rejected the claim of intention to remain in the new domicile and intention to abandon the old domicile. In Coquilla v. COMELEC,[17] the only evidence presented was a community tax certificate secured by the candidate and his declaration that he would be running in the elections. Japzon v. COMELEC[18] did not involve a candidate who wanted to count residence prior to his reacquisition of Philippine citizenship. With the Court decreeing that residence is distinct from citizenship, the issue there was whether the candidate's acts after reacquisition sufficed to establish residence. In Caballero v. COMELEC,[19] the candidate admitted that his place of work was abroad and that he only visited during his frequent vacations. In Reyes v. COMELEC,[20] the candidate was found to be an American citizen who had not even reacquired Philippine citizenship under Republic Act No. 9225 or had renounced her United States citizenship. She was disqualified on the citizenship issue. On residence, the only proof she offered was a seven-month stint as provincial officer. The COMELEC, quoted with approval by the Court, said that “such fact alone is not sufficient to prove her one-year residency.”
IN RE RIDER BABCOCK
In the case of In Re Will of Jennie Rider Babcock (Babcock Templeton v. Rider Babcock),[21] Jennie Rider Babcock (the testator) had spent her married life in the State of Massachusetts; but, her husband having died in 1908, she moved a year later to Manila where she lived with her son, W. R. Babcock, until in 1917, when she joined the family of her daughter, Mrs. B. B. Templeton, in San Francisco, California. In 1918, she returned to Manila where, allegedly, she died leaving a last will and testament. The question primarily was whether her will should be probated in the same manner as that of a Filipino’s. The secondary question was whether she was a domiciliary of the Philippines.
The Supreme Court found that, before her death, the testator cast her vote in California. In particular, the Court was of the opinion that, since the deceased had voted in California elections prior to her death, it was reasonable, though not conclusive, to say that California was her domicile, considering that voting in a place is an important circumstance. Taking into account the scanty evidence available to the lower court, the Supreme Court gave a decisive weight to the place of the testator’s exercise of suffrage, saying: “[t]he exercise of the franchise is one of the highest prerogatives of citizenship, and in no other act of his life does the citizen identify his interests with the state in which he lives more than in the act of voting.” Hence, as to the secondary question, the Court ruled that her domicile was still in California because it is a recognized rule that the intention with which removal is made from a particular state determines whether or not the domicile is abandoned; and intention is revealed only in the acts and declarations of the person concerned.
As to the primary question, obviously, the answer was and should be in the negative. Even supposing that the testatrix had not acquired a domicile in another state, except from California and despite the fact that she was a resident of the Philippine Islands at the time of her death, her will should not be admitted to probate as the will of a Filipino because a citizen of the United States cannot acquire citizenship in the Philippine Islands by residence here, however long continued.[22]
CAASI V. COURT OF APPEALS
The case of Caasi v. Court of Appeals[23] presented two issues: (a) whether or not a green card is proof that the holder is a permanent resident of the United States, and (a) whether respondent Miguel had waived his status as a permanent resident of or immigrant to the United States prior to the Philippine local elections on January 18, 1988. In other words, did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18, 1988 local elections, waive his status as a permanent resident or immigrant of the United States? Is the fact of being a green card holder sufficient proof that a person is a permanent resident of the United States, thereby affecting the residence requirement for a candidate?
Unfortunately for him, Respondent Miguel admitted that he held a green card, which proved that he was a permanent resident or immigrant of the United States, but there was no proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. The Supreme Court, therefore, ruled that he was disqualified to become a candidate for that office. Residence in the municipality where one intends to run for elective office for at least one (1) year at the time of the filing of a certificate of candidacy is one of the qualifications that a candidate for elective public office must possess under the Local Government Code.[24] Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988.
In his defense, Miguel insisted that, even though he applied for immigration and permanent residence in the United States, he never really intended to live there permanently, for all that he wanted was a green card to enable him to come and go to the United States with ease. In other words, he would have the Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, the Court would not allow itself to be a party to his duplicity by permitting him to benefit from it, and giving him the best of both worlds, so to speak. Miguel’s application for immigrant status and permanent residence in the United States and his possession of a green card attesting to such status were considered as conclusive proof that he was a permanent resident of the United States despite his occasional visits to the Philippines. The waiver of such immigrant status should have been as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate United States authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, the inevitable conclusion would be that he was disqualified to run for said public office; hence, his election thereto was null and void.
CO v. HRET
The case of Co v. House of Representatives Electoral Tribunal (HRET)[25] deals with three issues: (a) jurisdiction; (b) citizenship; and, (c) residence. For the purpose of this chapter, residence is the question.
On May 11, 1987, the congressional election for the second district of Northern Samar was held. Among the candidates who vied for the position of representative in the second legislative district of Northern Samar were petitioners, Sixto Balinquit and Antonio Co and the private respondent, Jose Ong, Jr. Respondent Ong was proclaimed the duly elected representative of the second district of Northern Samar. Petitioners filed election protests before the HRET on the ground of lack of the requirements of natural-born citizenship and residence. The HRET found for respondent.
Respondent’s grandfather arrived in the Philippines in 1895 from China and established his residence in the municipality of Laoang, Samar. Then, he was able to obtain a certificate of residence from the then Spanish colonial administration. His father was born in China in 1905; was brought to Samar in 1915. Later, his father met a natural-born Filipina, respondent’s mother; married in 1932. They had eight children, one of whom was respondent who was born in 1948. In 1955, a trial court declared respondent’s father a Filipino citizen, thereafter taking his oath of allegiance to the Philippines and receiving a certificate of naturalization. At the time, respondent was nine years old.
In 1971, the 1971 Constitutional Convention removed the unequal treatment given to derived citizenship on the basis of the mother’s citizenship. In 1984, respondent married a Filipina. For the elections of 1984 and 1986, respondent registered himself as a voter of Laoang, Samar, and correspondingly, voted there during those elections. In 1987, respondent ran for the people of Northern Samar as their representative. He won.
Petitioners alleged that respondent owned no property in Laoang, Samar and, therefore, he could not be considered a resident of said place. Countering this, the Supreme Court said that, upon the demise of his parents, necessarily, respondent, pursuant to the laws of succession, became the co-owner thereof (as a co-heir), notwithstanding the fact that these were still in the names of his parents. Even assuming that respondent did not actually own any property in Samar, the Supreme Court reiterated its ruling in De los Reyes v. Solidum[26] which held that it is not required that a person should have a house in order to establish his residence and domicile. It is enough that he should live in the municipality or in a rented house or in that of a friend or relative. Worse, to require respondent to own property in order to be eligible to run for Congress would be tantamount to a property qualification. The Constitution only requires that the candidate meet the age, citizenship, voting and residence requirements. Nowhere is it required by the Constitution that the candidate should also own property in order to be qualified to run.[27]
The term “residence” has been understood as synonymous with the term “domicile” not only under the previous Constitutions but also under the 1987 Constitution. Absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected does not constitute loss of residence.[28] In this case, respondent stayed in Manila for the purpose of finishing his studies and, later, to practice his profession. There was no intention to abandon his residence in Laoang, Samar. On the contrary, the periodical journeys made to his home province revealed that he always had animus revertendi.
LIMBONA V. COMELEC[29]
In the Limbona case, prior to the May 14, 2007 elections, petitioner Norlainie Mitmug Limbona and her husband, Mohammad Limbona, each filed a Certificate of Candidacy for Mayor of Pantar, Lanao del Norte. On April 2, 2007, private respondent Malik Alingan filed a disqualification case against Mohammad before the Provincial Election Supervisor of Lanao del Norte. On April 12, 2007, Alingan also filed a petition for disqualification against petitioner. Both disqualification cases were premised on the ground that petitioner and her husband lacked the one-year residency requirement and both were not registered voters of Pantar.
On April 17, 2007, petitioner executed an Affidavit of Withdrawal of her certificate of candidacy, which was subsequently approved by the Commission on Elections (COMELEC). Petitioner also filed a Motion to Dismiss the disqualification case against her for being moot and academic. On election day, May 14, 2007, the COMELEC resolved to postpone the elections in Pantar because there was no final list of voters yet. A special election was scheduled on July 23, 2007. On May 24, 2007, the COMELEC First Division disqualified Mohammad for failure to comply with the one-year residency requirement. Petitioner then sought substitute Mohammad on July 21, 2007. On July 23, 2007, Alingan filed a petition for disqualification against petitioner for, among others, lacking the one-year residency requirement. Alingan won the COMELEC Second Division disqualified petitioner.
The Comelec held that petitioner only became a resident of Pantar in November 2006. It explained that petitioner’s domicile of origin was Maguing, Lanao del Norte, her birthplace. When she got married, she became a resident of Barangay Rapasun, Marawi City, where her husband was Barangay Chairman until November 2006. Barangay Rapasun, the Comelec said, was petitioner’s domicile by operation of law under the Family Code of the Philippines, apparently invoking what appears to be a “domicile by marriage.” The Comelec said that petitioner’s evidence to show that she abandoned her domicile of origin or her domicile in Marawi City two years prior to the elections consisted mainly of self-serving affidavits and were not corroborated by independent and competent evidence. The Comelec also took note of its resolution in another case where it was found that petitioner was not even a registered voter in Pantar. Her motion for reconsideration was denied.
The COMELEC En Banc upheld the Second Division’s decision. It said that the issue of whether petitioner complied with the one-year residency rule had already been decided by the Supreme Court in Limbona v. COMELEC.[30] The Comelec noted that, in said case, the Supreme Court upheld the Comelec First Division’s disqualification of petitioner from running for mayor of Pantar for failure to comply with the residency requirement.
In resolving this, the Supreme Court merely reiterated its earlier June 25, 2008 ruling. Quoting itself, the Court said that petitioner’s claim that she had been physically present and actually residing in Pantar prior to the elections was self-serving and unsubstantiated. Ruling in favor of the COMELEC’s theory of domicile by marriage, the Court also declared that petitioner’s domicile of origin was Maguing, Lanao del Norte, which was also her place of birth; and that her domicile by operation of law (by virtue of marriage) was Rapasun, Marawi City. Since it is presumed that the husband and wife live together in one legal residence, the Supreme Court said that petitioner also effected the change of her domicile in the same way as her husband, i.e., he changed his domicile in favor of Pantar, Lanao del Norte only on November 11, 2006.
Notice that this ruling appears to be different from the earlier ruling of the Supreme Court in Romualdez-Marcos v. COMELEC.[31] In that case, the Court said:
“In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established distinction between the Civil Code concepts of domicile and residence.[32] The presumption that the wife automatically gains the husband's domicile by operation of law upon marriage cannot be inferred from the use of the term residence in Article 110 of the Civil Code because the Civil Code is one area where the two concepts are well delineated. Dr. Arturo Tolentino, writing on this specific area explains:
In the Civil Code, there is an obvious difference between domicile and residence. Both terms imply relations between a person and a place; but in residence, the relation is one of fact while in domicile it is legal or juridical, independent of the necessity of physical presence.[33]
Nonetheless, in the recent case of Poe-Llamanzares v. COMELEC,[34] the Court appears to have reiterated and in fact cited the Limbona ruling, saying that domicile by operation of law applies to infants, incompetents, and other persons under disabilities that prevent them from acquiring a domicile of choice.[35] It also accrues by virtue of marriage when the husband and wife fix the family domicile.[36]
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[1] Article 50 of the New Civil Code of the Philippines.
[2] Article 51 of the New Civil Code of the Philippines.
[3] As cited in Romualdez-Marcos v. COMELEC, G.R. No. 119976, September 18, 1995.
[4] Justice Brion's Concurring Opinion in Dano v. COMELEC, G.R. No. 210200, September 13, 2016.
[5] Limbona v. Comelec, 578 Phil. 364 [2008]. See also Macalintal v. COMELEC, 453 Phil. 586 (2003); and Japzon v. Comelec, 596 Phil. 354 (2009).
[6] Limbona v. COMELEC, Limbona v. Comelec, 578 Phil. 364 [2008].
[7] See Abella v. Commission on Elections and Larazzabal v. Commission on Elections, 278 Phil. 275 (1991). See also Pundaodaya v. Comelec, 616 Phil. 167 (2009).
[8] Pundaodaya v. Comelec, 616 Phil. 167 (2009); Jalosjos v. Comelec, G.R. No. 191970, April 24, 2012.
[9] G.R. No. 119976, September 18, 1995.
[10] Romualdez-Marcos v. COMELEC, G.R. No. 119976, September 18, 1995.
[11] Romualdez-Marcos v. COMELEC, G.R. No. 119976, September 18, 1995.
[12] Romualdez-Marcos v. COMELEC, G.R. No. 119976, September 18, 1995.
[13] Romualdez-Marcos v. COMELEC, G.R. No. 119976, September 18, 1995.
[14] G.R. Nos. 221697 & 221698-700, March 8, 2016.
[15] Fernandez v. House of Representatives Electoral Tribunal, 623 Phil. 628, 660 (2009) citing Japzon v. COMELEC, 596 Phil. 354, 370-372 (2009) further citing Papandayan, Jr. v. COMELEC, 430 Phil. 754, 768-770 (2002) further further citing Romualdez v. RTC, Br. 7, Tacloban City, G.R. No. 104960, 14 September 1993, 226 SCRA408, 415.
[16] Domino v. COMELEC, 369 Phil. 798, 819 (1999).
[17] 434 Phil. 861 (2002).
[18] 596 Phil. 354 (2009).
[19] G.R. No. 209835, 22 September 2015.
[20] G.R. No. 207264, 25 June 2013, 699 SCRA 522.
[21] G.R. No. 28328. October 02, 1928, 52 Phil. 130.
[22] In Re Estate of Johnson, 39 Phil., 156.
[23] G.R. No. 88831, November 08, 1990, 269 Phil. 237.
[24] “Section 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the Barangay, municipality, city, or province or, in the case of a member of the Sangguniang Panlalawigan, Sangguniang Panlungsod, or Sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.”
[25] 276 Phil. 758 [ G.R. Nos. 92191-92. July 30, 1991 ].
[26] 61 Phil. 893 [1935].
[27] See Maquera v. Borra, 122 Phil. 412 [1965].
[28] Faypon v. Quirino, 96 Phil. 294 [1954].
[29] 619 Phil. 226 [ G.R. No. 186006. October 16, 2009 ].
[30] G.R. No. 181097, June 25, 2008.
[31] 318 Phil. 329 [ G.R. No. 119976. September 18, 1995 ].
[32] Citing Tolentino, 1 Commentaries & Jurisprudence on the Civil Code, 220 (1987).
[33] Also citing Tolentino, 1 Commentaries & Jurisprudence on the Civil Code, 220 (1987).
[34] 782 Phil. 292 [ G.R. No. 221697. March 08, 2016 ].
[35] 25 Am Jur 2d, Domicil § 13, cited in the Concurring and Dissenting Opinion of J. Puno, Macalintal v. COMELEC, G.R. No. 157013, 10 July 2003.
[36] Citing Limbona v. COMELEC, G.R. No. 181097, 25 June 2008.
