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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].





Husband and wife have a personal and material interest in maintaining the integrity of the marriage that they have contracted and the property relations arising from it.[1] This interest is derived from the substantive right of the spouses not only to preserve (or dissolve, in limited instances[2]) their most intimate human relation, but also to protect their property interests that arise by operation of law the moment he contracts marriage.[3] These property interests in marriage include the right to be supported “in keeping with the financial capacity of the family”[4] and preserving the property regime of the marriage.[5]


Even in cases of divorce decrees obtained by foreigners in other countries recognizable in this jurisdiction, the legal effects thereof, e.g. on custody, care and support of the children, must still be determined by Philippine courts.[6] However, in one case, the Supreme Court agreed that the obligation to give support to a child is a matter that falls under family rights and duties.[7] If a person is a citizen of Holland or the Netherlands, s/he is subject to the laws of his/her country, not to Philippine law, as to whether s/he is obliged to give support to the child, as well as the consequences of his failure to do so.[8]


Article 195 of the Family Code of the Philippines provides, thus: “Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: (1) the spouses; (2) legitimate ascendants and descendants; (3) parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) legitimate brothers and sisters, whether of full or half-blood.”


A Filipina married to a foreigner who has obtained divorce under the national law of his country cannot rely on the aforecited Article 195 in demanding support from her spouse, who is a foreign citizen. This is because Article 15 of the New Civil Code of the Philippines stresses the principle of nationality. In other words, insofar as Philippine laws are concerned, specifically the provisions of the Family Code of the Philippines on support, the same only applies to Filipino citizens. By analogy, the same principle applies to foreigners such that they are governed by their national law with respect to family rights and duties.


In Vivo v. Cloribel,[9] the High Court explained: “It is contended for the respondents that two-year old respondent Uy Tian Siong cannot, under Article 363 of the Civil Code, be separated from his mother; that husband Uy Pick Tuy has the right to fix the residence of the family (Article 110), to the company of his wife (Article 109) and those of his minor children (Article 316), and said wife and chidren are obliged to obey and live with him (Articles 109, 311, 357); and that to make said wife and children depart from the Philippines is destructive of family solidarity (Articles 218-221). These arguments are beside the point. Said laws govern the relations between husband and wife inter se or between private persons,[10] not the relations between visiting alien and the sovereign host country. Respondents seem to have forgotten that they came here for a visit, and, as visitors, they have no right to impose upon their host a period of stay of their own choosing. Furthermore, being still aliens,[11] they are not in position to invoke the provisions of the Civil Code of the Philippines, for that Code cleaves to the principle that family rights and duties are governed by their personal law, i.e., the laws of the nation to which they belong even when staying in a foreign country.[12]


The question now is what the Supreme Court actually meant by saying that the legal effects a foreign divorce decree, e.g. on custody, care and support of the children, must still be determined by Philippine courts.[13] The author ventures the guess that the Supreme Court is referring to the non-automatic force and effect of a foreign divorce decree in the Philippines. The student should recall that, under Rule 39 of the Rules of Court, a foreign judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.[14] In the proceedings for the recognition and enforcement of a foreign divorce decree, matters relating to the custody, care and support of the children will have to be taken up because the forum cannot simply recognize a foreign divorce decree and disregard its effects on the incidences of marriage such as those concerning the children whose custody, care and support are regulated by law.


In Dacasin v. Dacasin,[15] Herald Dacasin (petitioner), American, and respondent Sharon Del Mundo Dacasin (respondent), Filipino, were married in Manila in April 1994. They have one daughter, Stephanie. In June 1999, respondent sought and obtained from the Circuit Court, 19th Judicial Circuit, Lake County, Illinois (Illinois court) a divorce decree against petitioner. In its ruling, the Illinois court dissolved the marriage of petitioner and respondent, awarded to respondent sole custody of Stephanie and retained jurisdiction over the case for enforcement purposes. Later, petitioner and respondent executed in Manila a contract (agreement ) for the joint custody of Stephanie. The parties chose Philippine courts as exclusive forum to adjudicate disputes arising from the said agreement. Respondent undertook to obtain from the Illinois court an order “relinquishing” jurisdiction to Philippine courts. In 2004, petitioner sued respondent in the Regional Trial Court (RTC) of Makati City, to enforce the agreement. Petitioner alleged that in violation of the Agreement, respondent exercised sole custody over Stephanie. Respondent sought the dismissal of the complaint for, among others, lack of jurisdiction because of the Illinois court’s retention of jurisdiction to enforce the divorce decree. The question is whether the trial court has jurisdiction to take cognizance of petitioner’s suit and enforce the agreement on the joint custody of the parties’ child.


In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on stipulations contrary to law, morals, good customs, public order, or public policy.[16] Otherwise, the contract is denied legal existence, deemed “inexistent and void from the beginning.”[17] For lack of relevant stipulation in the agreement , these and other ancillary Philippine substantive law serve as default parameters to test the validity of the agreement’s joint child custody stipulations. According to the Supreme Court, in the Dacasin case,[18] it can be inferred from the terms of the agreement that the parties intended to be bound by Philippine law on its intrinsic validity, evidenced, for instance, by the stipulation selecting Philippine courts as exclusive forum to settle any legal issue or dispute that may arise from the provisions of the agreement and its interpretation. The Court also ruled that Philippine law has the most substantial connection to the contract,[19] considering its object (custody of a Filipino-American child), subject (Filipino-American child under seven years of age, born of a Filipino mother, both of whom reside in the country) and parties (Filipina mother and alien father).


Still on the Dacasin case,[20] following the process of characterization, the Supreme Court said that the relevant Philippine law on child custody for spouses separated in fact or in law[21] is the Family Code of the Philippines, which states that no child under seven years of age shall be separated from the mother.[22] This statutory awarding of sole parental custody[23] to the mother is mandatory,[24] grounded on sound policy consideration,[25] subject only to a narrow exception.[26]  The Court has found it clear that the agreement’s object or purpose is to establish a post-divorce joint custody regime between respondent and petitioner over their child under seven years old contravenes Philippine law.


In fact, the Court ruled that the agreement is not only void ab initio for being contrary to law; it has also been repudiated by the mother when she refused to allow joint custody by the father. The agreement would be valid if the spouses have not divorced or separated because the law provides for joint parental authority when spouses live together. However, upon separation of the spouses, the mother takes sole custody under the law if the child is below seven years old and any agreement to the contrary is void. Thus, the law suspends the joint custody regime for children under seven years of age of separated or divorced spouses. Simply put, for a child within this age bracket, which the Court found to be commonsensical, the law decides for the separated or divorced parents how best to take care of the child and that is to give custody to the separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code of the Philippines on the maternal custody of children below seven years anymore than they can privately agree that a mother who is unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive maternal custody regime under the law.


Issues on support arising from the marriage of two Filipinos hardly escalate to the level of a conflicts case, especially if there is no foreign element that requires an analysis of Philippine conflicts rules. The foregoing dicussion and the cited cases, for example, arose because one of the contracting parties in marriage is a foreigner.


[1] Fujiki v. Marinay, G.R. No. 196049, June 26, 2013.

[2] Articles 35-67 of the Family Code of the Philippines.

[3] Articles 74-148 of the Family Code of the Philippines.

[4] Article 195 in relation to Article 194 of the Family Code of the Philippines.

[5] Articles 74-148 of the Family Code of the Philippines.

[6] Llorente v. Court of Appeals, 399 Phil. 342, 356 (2000), cited in Roehr v. Rodriguez, G.R. No. 142820, June 20, 2003.

[7] 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. (New Civil Code of the Philippines)

[8] Del Socorro v. Van Wilsem, G.R. No. 193707, December 10, 2014.

[9] G.R. No. L-25441, October 26, 1968.

[10] Citing Lo Beng Ha Ong vs. Republic, L-24503, 28 September 1968.

[11] Citing Vivo vs. Cloribel, 18 SCRA 713 (23 November 1966).

[12] Citing Article 15 of the New Civil Code of the Philippines.

[13] Llorente v. Court of Appeals, 399 Phil. 342, 356 (2000), cited in Roehr v. Rodriguez, G.R. No. 142820, June 20, 2003.

[14] Section 48 of Rule 39 of the Rules of Court.

[15] G.R. No. 168785, February 5, 2010.

[16] Article 1306 of the New Civil Code of the Philippines provides: “The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.”

[17] Article 1409, paragraph 1 of the New Civil Code of the Philippines provides: “The following contracts are inexistent and void from the beginning: (1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy.”

[18] G.R. No. 168785, February 5, 2010.

[19] Seemingly invoking the doctrine of most significant relationship but, most appropriately, the center of gravity doctrine.

[20] G.R. No. 168785, February 5, 2010.

[21] See Sempio-Dy, Handbook on the Family Code of the Philippines 67-68 [1988]. See also the second paragraph of Article 213 of the Family Code of the Philippines.

[22] Article 213 of the Family Code of the Philippines.

[23] Gamboa-Hirsch v. Court of Appeals (Res.), G.R. No. 174485, 11 July 2007, 527 SCRA 320 (reversing the Court of Appeals’ ruling mandating joint custody and awarding sole custody to the mother).

[24] Perez v. Court of Appeals, 325 Phil. 1014 (1996). For children over seven, custody decisions are guided by the standard of “best interest of the child.”

[25] Pablo-Gualberto v. Gualberto V,  G.R. No. 154994, 28 June 2005, 461 SCRA 450, 471-472.

[26] Sole maternal custody is denied only for “compelling reasons” such as “neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease.” (Pablo-Gualberto v. Gualberto V,  G.R. No. 154994, 28 June 2005)