If you are in the process of filing a petition for declaration of nullity of marriage or annulment of marriage or has an existing petition for such under any of the grounds enumerated under the Family Code, it might help to know the salient points on The Rule on Declaration of Nullity of Marriage and Voidable Marriages (A.M. No. 02-11-10-SC). Much as you trust your lawyer to do his job, it is also important to be familiar with the procedure on the petition so you’d know what steps your lawyer are taking or the particular stage in the proceeding. This post is a simple effort to explain the provisions of the rule and some cases interpreting its provisions. Most of the cases cited involved petitions for declaration of nullity of a marriage on the ground of psychological incapacity. This is a dynamic post, and will be revised accordingly as the need arises. This is a long read so brace yourself. Lawyers know this already, but if you think you can gain something by reading this, just plow ahead. One thing, if you see those numbers at the end of the sentence, those were meant to be footnotes, but our website template is having problems recognising it. Please disregard it for the moment until such time that I find a way to tweak it.
The Rule took effect on March 15, 2003.
The Rule covers all petitions for declaration of the absolute nullity of void marriage and annulment of voidable marriages under the Family Code of the Philippines.1 It does not apply to marriages celebrated prior to the enactment of the Family Code:
“The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages as contained in A.M. No. 02-11-10-SC which the Court promulgated on March 15, 2003, is explicit in its scope. Section 1 of the Rule, in fact, reads:
Section 1. Scope – This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines.
The Rules of Court shall apply suppletorily.
The categorical language of A.M. No. 02-11-10-SC leaves no room for doubt. The coverage extends only to those marriages entered into during the effectivity of the Family Code which took effect on August 3, 1988.7 The rule sets a demarcation line between marriages covered by the Family Code and those solemnized under the Civil Code.(Citations omitted)”2
What Are Void Marriages?
Void marriages are marriages which fall under the provisions of Article 35, 36, 37 38 , 41 of the Family Code.
What Are Voidable Marriages?
Voidable Marriages, on the other hand are those covered by Article 45 of the Family Code.
Who may file the petition?
The Rule provides that in petitions for declaration of nullity of void marriages, only the husband or the wife may file the petition,9 while in petitions for annulment of voidable marriages, the following parties may file the petition:
A. The contracting party whose parent, or guardian or person exercising substitute parental authority did not give his or her consent10:
B. The sane spouse who had no knowledge of the other’s insanity; or by any relative, guardian, or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity, provided that the petitioner, after coming to reason, has not freely cohabited with the other as husband and wife;11
C. The injured party whose consent was obtained by force, intimidation, or undue influence;
D. The injured party where the other spouse is physically incapable of consummating the marriage with the other and such incapability continues and appears to be incurable;12
E. The injured party where the other party was afflicted with a sexually transmissible disease found to be serious and appears to be incurable;13
The Rule dispensed with the certification to be issued by the Office of the Solicitor General under Article 48 of the Family Code as held in Molina, but did not dispense with the requirement to prove the root cause of psychological incapacity.
“Under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages,9which took effect on March 15, 2003, the foregoing guidelines have been modified. Section 2(d) of the said Rule provides:
SEC. 2. Petition for declaration of absolute nullity of void marriages.-
x x x x
(d) What to allege.- A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration.
The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.
The new Rule dispensed with the certification from the Solicitor General, stating therein his reasons for his agreement or opposition to the petition. Attachment of expert opinions to the petition is also dispensed with.14”
“Section 2, paragraph (d) of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (Rules)27 in fact provides:
SEC. 2. Petition for declaration of absolute nullity of void marriages.
x x x x
(d) What to allege. – A petition under Article 36 of the Family Code shall specially allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriages at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration.
The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.
As we explained in Barcelona, the requirement alleging the root cause in a petition for annulment under Article 36 of the Family Code was not dispensed with by the adoption of the Rules. What the Rules really eliminated was the need for an expert opinion to prove the root cause of the psychological incapacity. The Court further held that the Rules, being procedural in nature, apply only to actions pending and unresolved at the time of their adoption.1a15””
“On March 15, 2003, the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 08-11-10 SC, Rules) promulgated by the Court took effect. Section 2(d) of the Rules pertinently provides:
(d) What to allege. – A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration.
The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.
Section 12(d) of the Rules requires a pre-trial brief containing all the evidence presented, including expert opinion, if any, briefly stating or describing the nature and purpose of these pieces of evidence. Section 14(b) requires the court to consider during the pre-trial conference the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the petition. Under Section 17 of the Rules, the grounds for the declaration of the absolute nullity or annulment of marriage must be proved.”16
Actions or defense for the declaration of nullity of a void marriage shall not prescribe. On the other hand, actions for annulment of a voidable marriage generally prescribe within five (5) years from the marriage, or from discovery of the ground alleged.
Venue is the court of the place where you or your lawyer should file the case. In this case, the petition shall be filed in the Family Court of place of the province or city where the petitioner or respondent had been residing for at least six (6) months prior to the date of filing. In the case of a non-resident respondent, the case may be filed in the court of the place where he may be found in the Philippines, at the election of the petitioner.17 For example, if you are a resident of Manila and your spouse is a resident of Pasay City, you may file the petition in the Family Court of the RTC of Manila or Pasay City, at your election. What is material is that you or your spouse should have at least a six-month residence in the place where you elected to file the petition, otherwise the case shall be dismissed for lack of jurisdiction. Unlike ordinary civil actions, venue in these proceedings is jurisdictional and may not be waived by the parties.
The petition is the pleading formally asking the court to have your marriage declared void or the marriage annulled. At the very least, it should contain the complete facts constituting the cause of action;18 the names and ages of the common children of the parties,19 as well as the property regime that governs the marriage, and a listing of the properties, if any, acquired by the spouses during the marriage and which form part of the conjugal property.20 The default property regime that governs marriages under the Family Code is absolute community of property, unless the parties agreed to a different property regime prior to the marriage.
The petition should be verified (under oath) accompanied by a certification against forum shopping, which must be signed personally by the petitioner. Take note that the petition cannot be signed solely by counsel or an attorney-in-fact21. It should be filed in six copies. Within five (5) days from the filing of the petition, the petitioner shall furnish the Office of the Solicitor General and the Office of the City of Provincial Prosecutor and submit to the court proof of such service within the same 5-day period.22 What if the petitioner is abroad? He or she may still file the petition provided the verification and certification against forum shopping shall be authenticated by the duly authorised officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in the country where the petitioner is located.
Take note that failure to comply with any of these formal requirements is a ground for immediate dismissal of the petition.
If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other matters requiring urgent action.
A petition for declaration of nullity of marriage should already contain all the grounds for nullity or annulment of marriage. All causes of action must be included in the petition. For example, if the petition alleges psychological incapacity on the part of the spouse to perform the essential obligations of marriage,and at the same time the marriage lacks a marriage license rendering it void from the very beginning, all such actions must be included. The reason for it is grounded on the principle of res judicata, and specifically in the case of Mallion vs Alcantara23. In this case, the petitioner’s first petition for declaration on nullity of marriage on the ground of psychological incapacity was dismissed. In turn, he filed another petition where he alleged that his marriage to the respondent was void on the ground, this time, that the marriage lacked the marriage license. In denying Mallion’s petition, the Supreme Court said:
“Petitioner, however, forgets that he is simply invoking different grounds for the same cause of action. By definition, a cause of action is the act or omission by which a party violates the right of another. In both petitions, petitioner has the same cause – the declaration of nullity of his marriage to respondent. What differs is the ground upon which the cause of action is predicated. These grounds cited by petitioner essentially split the various aspects of the pivotal issue that holds the key to the resolution of this controversy, that is, the actual status of petitioner and respondent’s marriage.
Furthermore, the instant case is premised on the claim that the marriage is null and void because no valid celebration of the same took place due to the alleged lack of a marriage license. In Civil Case No. SP 4341-95, however, petitioner impliedly conceded that the marriage had been solemnized and celebrated in accordance with law. Petitioner is now bound by this admission. The alleged absence of a marriage license which petitioner raises now could have been presented and heard in the earlier case. Suffice it to state that parties are bound not only as regards every matter offered and received to sustain or defeat their claims or demand but as to any other admissible matter which might have been offered for that purpose and of all other matters that could have been adjudged in that case.
It must be emphasized that a party cannot evade or avoid the application of res judicata by simply varying the form of his action or adopting a different method of presenting his case.(citations omitted)”
This decision was reiterated in a very recent case24, where a lawyer was held guilty of forum shopping for failure to declare the existence of a first petition for declaration of nullity of marriage which is still pending when she filed a second petition praying for the dissolution of the said marriage.
The questions asked is: what if there was no prior admission on the existence or validity of the marriage I.e., if the ground invoked was lack of marriage license first, will the petition prosper if a second petition is filed this time on the ground of psychological incapacity? Or will there be no exception? The better rule is to take heed of the Supreme Court and throw in every ground you can invoke for the declaration of nullity of marriage, even the kitchen sink.
Summons is the order requiring the respondent to answer the complaint within fifteen days from receipt of the summons and the attached petition as well as annexes25, The rule on summons found in Rule 14 of the Rules of Court is applicable. If the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court be effected upon him by publication once a week for two consecutive weeks in a newspaper of general publication in the Philippines and in such other places as the court may order. A copy of the summons shall be served on the respondent at his last known address by registered mail or any other means the court may deem sufficient.26 The summons to be published shall contain the following data: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal grounds of the petition and the reliefs prayed for; and (e) directive for the respondent to answer within thirty days from the last issue of publication.
The Answer is the pleading in contravention of the petition. Here, the respondent may invoke grounds for the denial of the petition, and at the same time invoke his counterclaim for reliefs as the circumstances warrant. It should be filed within fifteen (15) days from receipt of the summons, or within thirty (30) days from the last issue of publication if the summons was made thru publication. The answer should be verified by the respondent himself, and not by counsel or attorney-in-fact.27 No motion to dismiss is allowed except when the ground invoked is lack of jurisdiction over the subject matter or over the parties. However, any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in the answer.28
The Role of the Public Prosecutor
The role of the public prosecutor in proceedings of this nature is two-fold: to prevent the introduction of manufactured evidence and/or suppression of evidence in the proceedings and to prevent collusion by the parties at all stages of the proceedings. In cases where no answer was filed by the respondent, or the answer does not tender an issue, it shall be the duty of the court to order the public prosecutor to conduct an investigation whether collusion exists between the parties.29 Take note that the failure of the respondent to file an answer does not give the court authority to declare him in default, whether motu proprio or upon motion of the petitioner.30
Within one month after receipt of the court order requiring him to investigate if collusion exists between the parties, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies of the report on the parties and their respective counsels.31 If the public prosecutor finds that collusion exists, he shall state the same in his findings, after which the court shall set the report for hearing within ten (10) days from receipt of the same and dismiss the petition if he is convince that the parties are in collusion.32 If no collusion exists, the court shall set the case for pre-trial, where it is the duty of the public prosecutor to appear for the State.33
At the pre-trial, if the respondent has filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days thereafter a report to the court stating whether his non-appearance is due to any collusion between the parties. If there is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence.34
What if there was minimal participation from the public prosecutor? Then the decision itself may be questioned, as happened in the case of Republic vs Cuison-Melgar35, where the Court noted:
“In this case, the State did not actively participate in the prosecution of the case at the trial level. Other than the Public Prosecutor’s Manifestation that no collusion existed between the contending parties and the brief cross-examination which had barely scratched the surface, no pleading, motion, or position paper was filed by the Public Prosecutor or the OSG. The State should have been given the opportunity to present controverting evidence before the judgment was rendered. Truly, only the active participation of the Public Prosecutor or the OSG will ensure that the interest of the State is represented and protected in proceedings for annulment and declaration of nullity of marriages by preventing collusion between the parties, or the fabrication or suppression of evidence. (Citations omitted)
The Role of the Social Worker
It is the duty of the social worker, upon order of the court, to conduct a case study and submit the coresponding report at least three days before pre-trial. The court may also require a case study at any stage of the case whenever necessary.
The Pre-Trial Brief and the Pre-Trial
When the issues have been joined, or after determination by the public prosecutor that no collusion exists between the parties, the court shall set the pre-trial, motu proprio or upon motion. The pre-trial is mandatory in these proceedings.36 The court shall issue a notice of pre-trial which shall contain the date of the pre-trial conference37, an order directing the parties to parties to file and serve their respective pre-trial briefs in such manner as shall ensure the receipt thereof by the adverse party at least three days before the date of the pre-trial38
The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor, and it shall be their duty to appear personally during the pre-trial.39 If the respondent did not file his answer, or if the summons was served thru publication and he did not answer, the notice of pre-trial shall be sent to his last known address.40
The rule also enumerates the contents41 of the pre-trial brief. The failure to file the pre-trial brief or to comply with its required content shall have the same effect as failure to appear at the pre-trial.42 Where the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly-authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. It is the look-out of the petitioner to faithfully comply with the rules on pre-trial, because unlike him or her, the respondent may or may not appear during the pre-trial and yet not be declared in default or prevented from participating in the trial, unlike in ordinary civil actions where failure of the defendant to appear may result in the declaration of default.
At the pre-trial conference, the court may refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law, such as support, custody, or property relations. It shall be the duty of the mediator to render a report within one month from the referral, or the court may extend it for good reasons, for a period not exceeding one month.43 If mediation fails, the court shall proceed with the pre-trial conference and consider the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the case.44 The proceedings during the pre-trial shall be recorded, and upon its termination, the court shall issue a pyre-trial order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed on the pleadings, the agreements or admissions made by the parties, except as to the ground of declaration of nullity or annulment, including any provisional order that may be necessary or agreed upon by the parties.45 If the acton proceeds to trial, the order shall also recite the following: (a) facts undisputed, admitted, and those which need not be proved subject to Section 16 of the rule (the prohibited compromises); (b) factual and legal issues to be litigated; (c) evidence, including objects and documents, that have been marked and will be presented; (d) names of witnesses who will be presented and their testimonies in the form of affidavits; and, (e) schedule of the presentation of evidence.46
Take note that the Judicial Affidavit Rule is applicable in all civil cases within the jurisdiction of the Regional Trial Court, and hence, the parties may be required to submit all the judicial affidavits of all the witnesses to be presented by them in the course of the trial during the pre-trial itself. Other courts require submission of the judicial affidavit of the witnesses five (5) days before the testimony of the witness.
The pre-trial order should also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits.47 The parties have five days from receipt of the pre-trial order to propose correction or modification48, failing which they shall be bound by the pre-trial order, which shall control the trial of the case, unless modified by the court to prevent manifest injustice.49
Parties are prohibited from entering into compromise on the following matters: (a) the civil status of persons; (b) the validity of a marriage or a legal separation; (c) any ground for legal separation (d) future support; (e)the jurisdiction of court; and (f) future legitime.50 Compromise on these matters are prohibited by reason of law or by public policy.
At the trial, it is the duty of the presiding judge to personally conduct the trial, and delegation of the reception of evidence to a commissioner shall not be allowed, except as to matters involving property relations of the parties.51 Any abbreviated proceeding such as a judgment on the pleadings, summary judgment or confession of judgment shall not allowed, and the ground for the declaration of absolute nullity or annulment of the marriage must be proved.52 During the trial, if the court makes an ascertainment on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity, would violate the right of a party to privacy; or would be offensive to decency or public morals, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case.53 No party may be allowed to copy nor any examination or perusal of the records of the case or parts thereof be made, except when he or she is a party or the counsel of a party. Only the court may allow the same.54
This particular stage is where you and your witnesses give your side of the case, either in support of or against the petition. This you do by presenting testimonial, documentary or object evidence tending to prove your case by preponderance of evidence.
Within fifteen days from the termination of the trial, the court may require the parties to submit a memoranda, including the public prosecutor in consultation with the Office of the Solicitor General. The court may require the OSG to submit its own memoranda if the case is of significant interest to the State. With or without the memoranda, the case shall be submitted for decision, and no other pleadings or papers may be filed without leave of court.55
The trial court controls the trial, and may defer reception of evidence pending determination of the validity of the marriage, as held in Yu vs Reyes:
“The Court En Banc Resolution in A.M. No. 02-11-10-SC clearly allows the deferment of the reception of evidence on custody, support, and property relations. Conversely, the trial court may receive evidence on the subject incidents after a judgment granting the petition but before the decree of nullity or annulment of marriage is issued.”56
In Rumbaua vs Rumbaua, petitioner, whose marriage was declared void by the RTC on the ground of psychological incapacity, but was reversed by the RTC, argued that A.M. No. 02-11-10-SC is not applicable to her case, as it was promulgated after the Molina ruling which required the OSG to issue a certification briefly stating his reasons for for his agreement or opposition. Absent this certification, the RTC decision was rendered prematurely, and the CA should have remanded to the RTC for further proceedings, and not dismissed. The SC ruled:
“A.M. No. 02-11-10-SC is applicable
In Molina, the Court emphasized the role of the prosecuting attorney or fiscal and the OSG; they are to appear as counsel for the State in proceedings for annulment and declaration of nullity of marriages:
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. [Emphasis supplied.]
A.M. No. 02-11-10-SC — which this Court promulgated on March 15, 2003 and duly published — is geared towards the relaxation of the OSG certification that Molina required. Section 18 of this remedial regulation provides:
SEC. 18. Memoranda. – The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated.lawphil.net It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda.
“The amendment introduced under A.M. No. 02-11-10-SC is procedural or remedial in character; it does not create or remove any vested right, but only operates as a remedy in aid of or confirmation of already existing rights. The settled rule is that procedural laws may be given retroactive effect, as we held in De Los Santos v. Vda. de Mangubat:
Procedural Laws do not come within the legal conception of a retroactive law, or the general rule against the retroactive operation of statues – they may be given retroactive effect on actions pending and undetermined at the time of their passage and this will not violate any right of a person who may feel that he is adversely affected, insomuch as there are no vested rights in rules of procedure.
A.M. No. 02-11-10-SC, as a remedial measure, removed the mandatory nature of an OSG certification and may be applied retroactively to pending matters. In effect, the measure cures in any pending matter any procedural lapse on the certification prior to its promulgation. Our rulings in Antonio v. Reyes and Navales v. Navales have since confirmed and clarified that A.M. No. 02-11-10-SC has dispensed with the Molina guideline on the matter of certification, although Article 48 mandates the appearance of the prosecuting attorney or fiscal to ensure that no collusion between the parties would take place. Thus, what is important is the presence of the prosecutor in the case, not the remedial requirement that he be certified to be present. From this perspective, the petitioner’s objection regarding the Molina guideline on certification lacks merit.”(Citations omitted)
In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular court.57 If the party dies after the entry of judgment of nullity or annulment, however, the judgment shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts.58
Finally, the trial court’s decision had already become final and executory, and judgment was entered on October 29, 1999. For this reason and on account of private respondent’s death on January 14, 2004,16 the judgment is binding on both parties. Section 24 of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages17 provides:
Sec. 24. Effect of death of a party; duty of the Family Court or Appellate Court. – …(b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts.59
A decision granting the petition should declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code.60 The decision shall be served on the parties, including the Solicitor General and the public prosecutor personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general publication.61 Upon the expiration of the fifteen days from notice to all the parties, and no motion for reconsideration was filed by any of the parties, including the Office of the Solicitor General, the decision becomes final.62 Entry of judgement shall thereafter be entered. If the parties have no properties, the court shall issue the corresponding Decree of Declaration of Absolute Nullity or Annulment of Marriage.63 If the parties have properties, after entry of judgment shall have been issued by the court, or upon receipt of the entry of judgment of the appellate court in case of appeal, the Family Court of motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimise pursuant to Articles 50 and 51 of the Family Court, unless such matters have been adjudicated in previous judicial proceedings.
Dino vs Dino assailed the ruling of the trial court which declared the liquidation of the properties of a marriage declared void by reason of psychological incapacity under Article 36 of the Family Code. The Court ruled that is it not applicable to this kind of void marriage, which property relation is governed by Article 147 of the Family Code
“We agree with petitioner that the trial court erred in ordering that a decree of absolute nullity of marriage shall be issued only after liquidation, partition and distribution of the parties’ properties under Article 147 of the Family Code. The ruling has no basis because Section 19(1) of the Rule does not apply to cases governed under Articles 147 and 148 of the Family Code. Section 19(1) of the Rule provides:
Sec. 19. Decision. – (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties
The pertinent provisions of the Family Code cited in Section 19(1) of the Rule are:
Article 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and in Article 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 4645. (Citations omitted)
X x x
It is clear from Article 50 of the Family Code that Section 19(1) of the Rule applies only to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45 of the Family Code. In short, Article 50 of the Family Code does not apply to marriages which are declared void ab initio under Article 36 of the Family Code, which should be declared void without waiting for the liquidation of the properties of the parties.65
An aggrieved party or the Solicitor General may file a Notice of Appeal to appeal the decision within fifteen days from notice of denial of the motion for reconsideration or new trial, which is a pre-condition for the filing of the appeal. And which should be filed within 15 days from notice of the decision of the trial court. The appellant shall serve a copy of the notice of appeal on the adverse parties.66
In Republic vs Iyoy67, the respondent argued that the Office of the Solicitor General had no authority to file the petition for review on certiorari before the Supreme Court invoking Article 48 of the Family Code which held that the prosecuting attorney or fiscal assigned to the RTC may intervene on behalf of the State in proceedings for annulment or declaration of nullity of marriages, the Supreme Court rebuked him, ruling that:
“That Article 48 does not expressly mention the Solicitor General does not bar him or his Office from intervening in proceedings for annulment or declaration of nullity of marriages. Executive Order No. 292, otherwise known as the Administrative Code of 1987, appoints the Solicitor General as the principal law officer and legal defender of the Government. His Office is tasked to represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. The Office of the Solicitor General shall constitute the law office of the Government and, as such, shall discharge duties requiring the services of lawyers.
The intent of Article 48 of the Family Code of the Philippines is to ensure that the interest of the State is represented and protected in proceedings for annulment and declaration of nullity of marriages by preventing collusion between the parties, or the fabrication or suppression of evidence; and, bearing in mind that the Solicitor General is the principal law officer and legal defender of the land, then his intervention in such proceedings could only serve and contribute to the realization of such intent, rather than thwart it.
Furthermore, the general rule is that only the Solicitor General is authorized to bring or defend actions on behalf of the People or the Republic of the Philippines once the case is brought before this Court or the Court of Appeals. While it is the prosecuting attorney or fiscal who actively participates, on behalf of the State, in a proceeding for annulment or declaration of nullity of marriage before the RTC, the Office of the Solicitor General takes over when the case is elevated to the Court of Appeals or this Court. Since it shall be eventually responsible for taking the case to the appellate courts when circumstances demand, then it is only reasonable and practical that even while the proceeding is still being held before the RTC, the Office of the Solicitor General can already exercise supervision and control over the conduct of the prosecuting attorney or fiscal therein to better guarantee the protection of the interests of the State.”
X x x
“Finally, the issuance of this Court of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, which became effective on 15 March 2003, should dispel any other doubts of respondent Crasus as to the authority of the Solicitor General to file the instant Petition on behalf of the State. The Rule recognizes the authority of the Solicitor General to intervene and take part in the proceedings for annulment and declaration of nullity of marriages before the RTC and on appeal to higher courts. The pertinent provisions of the said Rule are reproduced below –
Sec. 5. Contents and form of petition. –
(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period.
Sec. 18. Memoranda. – The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda.
Sec. 19. Decision. –
(2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation.
(3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor, or the Solicitor General.
Sec. 20. Appeal. –
(2) Notice of Appeal. – An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties.” (Citations omitted)
Issuance and Recording and Publication of the Decree of Declaration of Nullity or Annulment of Marriage
The Decree shall be issued after the entry of judgment granting the petition was registered in the city civil registry where the marriage was solemnised as well as in the city civil registry of the Family Court which rendered the decision; the approved partition and distribution of the properties in the registry of deeds where the properties are located, as well as the delivery of the children’s presumptive legitime. The court shall also order the local civil registrar to issue an amended birth certificate indicating the new civil status of the children affected, from legitimate to illegitimate, except in cases under Art. 36 and Art. 53. After the issuance of the decree, the prevailing party shall again cause the registration of the decree in city civil registries of the place where the marriage was solemnised, and the city where the Family Court rendered its decision. When summons was made by publication, the parties shall cause the publication of the summons in a newspaper of general circulation.
That’s it folks. I hope I was able to enlighten you with this little smattering of wisdom. You’ll have to forgive my writing skill or lack of it. From now on, you may see more of this kind of post.
Would appreciate feedback on this post.
1 Sec. 1
2 Bolos vs Bolos, G.R. No. 186400, October 20, 2010
3 Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
4 Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227)
5 Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.
6 Art. 38. The following marriages shall be void from the beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse. (82)
7 Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph 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.
8 Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.
9 Sec. 2 (a)
10 Sec. 3(a)(1()
11 Sec. 3(a)(2)
12 Sec. 3(a)(4)
13 Sec. 3(a)(4)
14 Tongol vs Tongol, G.R. No. 157610 October 19, 2007
15 Toring vs Toring and Republic, G.R. No. 165321 August 3, 2010
16 Suazo vs Suazo and Republic of the Philippines, G.R. No. 164493 March 10, 2010
17 Sec. 4
18 Sec. 5 (1)
19 Sec. 5(2)
20 Sec. 5(3)
21 Sec. 5(3)
22 Sec. 5 (4)
23 G.R. No. 141528 October 31, 2006
24 A.C. No. 9871, June 29, 2016, IN RE: A.M. NO. 04-7-373-RTC [REPORT ON THE JUDICIAL AUDIT CONDUCTED IN THE REGIONAL TRIAL COURT, BRANCH 60, BARILI, CEBU] AND A.M. NO. 04-7-374-RTC [VIOLATION OF JUDGE ILDEFONSO SUERTE, REGIONAL TRIAL COURT, BRANCH 60, BARILI, CEBU OF ADMINISTRATIVE ORDER NO. 36-2004 DATED MARCH 3, 2004], PROSECUTOR MARY ANN T. CASTRO-ROA, RESPONDENT.
25 Sec. 6
26 Sec. 6(1)
27 Sec. 8
28 Sec. 7
29 Sec. 8(2)
30 Sec. 8(1)
31 Sec. 8(1)
32 Sec 8(2)
33 SEc. 8 (3)
34 Sec. 13 (b)
35 G.R. No. 139676 March 31, 2006
36 Sec. 11 (1)
37 Sec. 11 (2)(a)(1)
38 Sec. 11(2)
39 Sec. 11(2)(b)
40 Sec. 12(2)(c)
41 Section 12. Contents of pre-trial brief. – The pre-trial brief shall contain the following:
(a) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof;
(b) A concise statement of their respective claims together with the applicable laws and authorities;
(c) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues;
(d) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof;
(e) The number and names of the witnesses and their respective affidavits; and
(f) Such other matters as the court may require.
42 SEc. 12
43 Sec. 14(a)
44 Sec. 14(b)
45 Sec. 15 (a)
46 Sec 15(b)
47 Sec. 15 (c)
48 Sec. 15 (e)
49 Sec. 15(d)
50 Sec. 16
51 Sec. 17(1)
52 Sec. 17(2)
53 Sec. 17 (3)
54 SEc. 17(4)
55 Sec. 18
56 Yu vs Judge Reyes, G.R. No. 189207 June 15, 2011
57 Sec. 24(a)
58 Sec. 24(b)
59 Castro vs Castro, et al., G.R. No. 140484 January 28, 2008
60 Sec. 19(1)
61 Sec. 19(2)
62 Sec. 19(3)
63 Sec. 19(4)
64 Diño vs Diño, G.R. No. 178044 January 19, 2011
66 SEc. 20
67 G.R. No. 152577 September 21, 2005