Step-by-step procedure for declaration
of absolute nullity of void marriages and voidable marriages
The New
Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages took effect on March 15,
2003. This is now the controlling procedure for dissolution of
marriages. The most important amendment to this Rule is that Appeal by the
Solicitor General of the Decisions from the Regional Trial Court is
not mandatory.
We have simplified this rule for your
easy understanding of the procedure -
Alexander Llanes Acain, Jr. Esq.
Petitioner files a Petition for Annulment of Marriage before the
Office of the Executive Clerk of Court of the Regional Court
This is the office where the
Petitioner files the Petition and pays the corresponding docket
fees. The New Rule on Annulment of Marriage says that the Petition shall
be filed in the Regional Trial Court of the province or city where
the petitioner or the
respondent has been residing for at least six
months prior to the date of filing, or in the case of a non-resident
respondent, where he may be found in the Philippines, at the
election of the petitioner.
Under the new Rule, the opinion of
an expert/doctor need not be alleged in the Petition.
The Office of Executive Clerk of Court schedules the raffling of
the
Petition for assignment of the case to the Family Court of the Regional Trial Court
The raffling of cases is usually
done every Monday, Tuesday or Friday.
The Clerk of Court of the Regional Trial Court assigned in the case issues Summons to the respondent spouse
Assuming that the Petition is
sufficient in form and substance, the Clerk of Court will issue
Summons to be served to the respondent spouse. Basically, Summons
shall be directed to the respondent spouse containing 1) the name
of the Court and the names of parties to the action, and 2)
directing respondent spouse to file his answer within fifteen (15)
days from service of summons, or within thirty days from the last
issue of publication in case of service of summons by publication.
If the respondent spouse is
residing outside of the court’s territorial jurisdiction, summons
shall be coursed through the Office of the Executive Sheriff of the
Regional Trial Court where respondent is said to be residing as
stated in the Petition.
For instance, if the Petition is
filed in Makati City and the respondent is residing in Davao City,
the Court shall serve the summons through to the Office of the
Executive Sheriff of the Regional Trial Court of Davao, City. The
Executive Sheriff of Davao City shall be the one who will serve the
summons to the respondent spouse.
If the respondent spouse 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 circulation in
the Philippines and in such places as the court may order. In
addition, 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.
The summons to be published shall
be contained in an order of the court with 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) a directive for the respondent to answer within thirty days
from the last issue of publication.
Respondent spouse files his/her Answer to the Petition
The answer must be verified by the
respondent himself and not by counsel or attorney-in-fact. If no
Answer is filed, the Court will not declare him/her in default.
However, the Court shall Order the public prosecutor (Fiscal) to investigate
whether collusion or agreement exists between the parties. The
public prosecutor usually requires the parties to appear during the
scheduled hearing for investigation. But in exceptional
circumstances, the appearance of counsel is already sufficient.
The Court may also Order the public
prosecutor to investigate when respondent admitted his/her
psychological incapacity in the Answer.
The Petition shall be dismissed by
the Court if collusion exists.
Referral of the case for case study to a social worker (optional)
Before Pre-trial, the Court may, at
its option, refer the case to the social worker for case study. And
whenever necessary, the Court may also Order the referral of the
case to a social worker at any stage of the proceedings. This holds
true if custody issues of minor children are included in the
Petition.
The Court sets the case for Pre- Trial conference
This is mandatory. On motion of
parties or at its own initiative, the court shall set the case for
pre-trial after the last pleading has been served and filed, or upon
receipt of the report of the public prosecutor that no collusion
exists between the parties.
The Notice of Pre-trial shall also
direct the parties to submit their respective pre-trial briefs at
least three days before the date of pre-trial conference. The Notice
shall also be served to the respondent spouse even if he/she does
file an Answer.
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.
The
case shall be dismissed if the Petitioner fails to file a pre-trial
brief. unless he/she or his counsel gives a valid excuse for
non-submission of pre-trial brief.
Pre-Trial Conference
The appearance of the parties in
the pre-trial conference is mandatory. The case shall be dismissed
if the Petitioner fails to appear in the pre-trial conference.,
unless his/her counsel or a duly authorized representative appears
in court and proves a valid excuse for the non-appearance of the
petitioner. If respondent 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/her
non-appearance is due to any collusion or agreement between the
parties. If there is no collusion or agreement, 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.
In the pre-trial conference, the
Court shall consider the advisability of receiving the doctor’s
testimony and such other matters as may aid in the prompt
disposition of the petition.
Referral to the Mediator (optional)
A 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.
The mediator shall render a report within one month from referral
which, for good reasons, the court may extend for a period not
exceeding one month. In case mediation is not availed of by the
parties or if it fails, the court shall proceed with the pre-trial
conference.
Termination of Pre-Trial Conference and Pre-Trial Order
Upon termination of the pre-trial
conference, the Court shall issue an Order of pre-trial 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 on any of the matters
considered, including any provisional order that may be necessary or
agreed upon by the parties.
Trial Proper
The
presiding judge shall personally conduct the trial of the case. No
delegation of the reception of evidence to a commissioner shall be
allowed except as to matters involving property relations of the
spouses. The grounds for declaration of absolute nullity or
annulment of marriage must be proved. No judgment on the pleadings,
summary judgment, or confession of judgment shall be allowed. 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. Such an order may be made if the court determines 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. No
copy shall be taken nor any examination or perusal of the records of
the case or parts thereof be made by any person other than a party
or counsel of a party, except by order of the court.
In
the trial, it is appropriate to present the testimony of the doctor
to prove the existence of psychological incapacity.
The
trial shall proceed even if the respondent does appear, provided
that the findings of public prosecutor says that the there is NO
collusion or conspiracy that exist between the parties. In which
case, the Court shall Order the public prosecutor to intervene for
the State to prevent suppression or fabrication of evidence and case
shall be tried solely on the evidence presented by the Petitioner.
Bear in mind that the processing time
will be substantially reduced if the respondent spouse will not
contest the Petition.
Submission of Memoranda
After the presentation of evidence, 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.
Decision
The
Court may either grant or deny the Petition. If the Court grants
the Petition, a decree of annulment shall be issued after finality
of the decision. However, when there are properties of the spouses
involved, the decree of annulment shall be issued by the court only
after the properties shall have been Liquidated, Partitioned and
Distributed.
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.
Motion for Reconsideration
A
party aggrieved by the granting or denial of the Petition may file a
Motion for Reconsideration within fifteen days from Notice of the
Decision. The public prosecutor may also file a Motion for
Reconsideration from the Decision granting the Petition.
Appeal
No appeal from the decision shall
be allowed unless the appellant has filed a motion for
reconsideration or new trial within fifteen days from notice of
judgment.
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.
Finality of the Decision
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. Upon the
finality of the decision, the court shall forthwith issue the
corresponding decree if the parties have no properties.
The
entry of judgment shall be registered in the Civil Registry where
the marriage was recorded and in the Civil Registry where the Family
Court granting the petition for declaration of absolute nullity or
annulment of marriage is located.
Issuance of the Decree of Annulment
The Decree of Annulment shall be issued after the proof of
registration of the entry of judgment in the Civil Registry where
the marriage was recorded and in the Civil Registry where the Family
Court granting the petition for declaration of absolute nullity or
annulment of marriage is located.
Contact Us
________________________________________
You're invited to call us to discuss
your marital problems. We shall be glad to talk with you over the
telephone, or in our office or yours, whichever is easiest for you.
You can also e-mail us at
gtalaw@gtalawphil.com and we shall get back to you
immediately.
GUZMAN TAÑEDO & ACAIN
Mile Long Building 316
Legaspi Village
Amorsolo Street
Makati City
Telephone: 8941441
TeleFax: 8124296
e-mail:
gtalaw@gtalawphil.com
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