The procedure provided under the Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages is discussed below. Note that a petition for “annulment” refers to voidable marriages, which are valid until annulled by the court, while a petition for “declaration of nullity” refers to marriages that are considered void or inexistent from the very beginning. There are other differences, e.g., legitimate status of children, property relations between the spouses, prescription and ratification (for the procedure in legal separation, see Steps/Procedure in Legal Separation Cases). For convenience, we may refer to both petitions as “annulment”.
1. PREPARATION AND FILING OF PETITION
The petition must be filed within the prescriptive period. The petition must be verified and must allege, among others, the facts that constitute the ground relied upon (see grounds for annulment or grounds for declaration of nullity). The documents supporting the petition, including the marriage certificate, must be attached. It has to be signed by the petitioner (the spouse filing the petition).
Overseas Filipinos may file the petition while abroad. The Verification Page of the petition has to be signed and authenticated, through the Authentication Certification (or “red ribbon“) issued by Philippine consuls in the jurisdiction where divorce decree was secured or, in certain countries, conveniently through the Apostille.
The petition may be filed, at the option of the petitioner, in the Family Court of the province/city where the petitioner or the other spouse (called the “respondent”) resides for the last six (6) months prior to the date of filing. [Must-read: Residence: Guidelines to Validate Compliance with Jurisdictional Requirement (Annulment, Declaration of Nullity, Legal Separation)]
Incidentally, upon filing of the petition or anytime thereafter, the court may issue provisional protective orders (PPOs).
2. SERVICE OF SUMMONS
In simplest terms, this is giving notice to the respondent. Where the respondent cannot be located at the given address or the whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may be done by publication. This is crucial because the court cannot validly proceed without a valid service of summons.
The respondent must answer within 15 days from service of summons (or within 30 days from the last issue of publication in case of service of summons by publication). Unlike in civil cases, the respondent in annulment proceedings is not declared in default if he/she fails or refuses to file an answer, but the public prosecutor shall be ordered to investigate whether collusion exists between the parties.
4. COLLUSION INVESTIGATION
The court orders the public prosecutor to conduct a collusion investigation, and thereafter, to prepare and submit a collusion investigation report. The public prosecutor issues a subpoena to both spouses, ordering them to appear for the conduct of the collusion investigation. This is a challenge when the petitioner is an Overseas Filipino.
It is mandatory for the court to check the existence of collusion between the parties. There are two outcomes:
- if the court is convinced that collusion exists, it shall dismiss the petition.
- if there is no collusion, the court shall set the case for pre-trial conference.
The collusion investigation shall also include a determination of the party’s residencies. [see Residence: Guidelines to Validate Compliance with Jurisdictional Requirement (Annulment, Declaration of Nullity, Legal Separation)]
5. PRE-TRIAL CONFERENCE
During the mandatory pre-trial conference, the court and the parties deal with certain matters, such as stipulation of facts, for the purpose of expediting the proceedings. The petition may be dismissed if the petitioner fails to appear during pre-trial.
The parties are required to submit their pre-trial conference briefs, attaching their documentary evidence including the judicial affidavits. The judicial affidavit, containing the written testimony of the witness in Q&A form, must be signed by the witness and properly notarized. Overseas Filipinos may sign the judicial affidavit in the Philippines, or, when abroad, have it authenticated, through the conventional Authentication Certification (or “red ribbon“) procedure or through the Apostille.
Any documentary evidence must be marked during the pre-trial conference. Without the pre-marking of the documents (or the submission of judicial affidavit) during the pre-trial conference, the document (or the witness) cannot be presented during trial.
At this stage, the court may also refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law (no compromise allowed in civil status of persons, validity of marriage or of legal separation, grounds for legal separation, jurisdiction of courts, and future support and legitime). The court may also require a social worker to conduct a case study and submit a report at least 3 days before the pre-trial conference, or at any stage of the case whenever necessary.
This is the stage where the ground for annulment is proved and opposed. 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.
The OSG, who must be notified of the filing of the petition, is duty-bound to ensure that the institution of marriage is amply protected. The OSG can do this directly but, in most cases we handled, the OSG deputizes the public prosecutor to appear in the case. A court hearing may be cancelled or postponed due to the absence of the OSG or public prosecutor.
Notwithstanding the preparation and submission of the judicial affidavit, the witness must still personally appear and testify in court. The direct examination generally involves only the identification of the judicial affidavit and the documentary exhibits. The cross-examination follows.
After the trial proper, the court renders its decision, which is different from the Decree of Annulment. A decision, whether granting or dismissing the petition, becomes final upon the expiration of 15 days from notice to the parties.
Even if the other spouse did not participate in the proceedings, the OSG may, and usually do, seek a reconsideration of the decision granting the petition.
The aggrieved party or the Solicitor General may appeal from the decision within 15 days from notice of denial of the motion for reconsideration or new trial. The appeal is generally filed with the Court of Appeals (CA).
The entire process may stretch for years. The proceedings at the trial court level usually takes at least one year. The filing and resolution of the motion for reconsideration may take a couple of months. The filing and resolution of the appeal at the CA level may take at least one year. If the CA affirms the grant of the petition, the OSG can, and usually do, elevate the case to the Supreme Court. This process may take at least one year.
9. INCIDENTAL MATTERS
The liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes, must be done upon entry of the judgment granting the petition.
10. DECREE OF ANNULMENT
The court issues the Decree after: (i) registration of the entry of judgment granting the annulment in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the court is located; (ii) registration of the approved partition and distribution of the properties of the spouses in the proper Register of Deeds where the real properties are located; and (iii) delivery of the children’s presumptive legitimes in cash, property, or sound securities.
11. REGISTRATION OF DECREE
The Decree must be registered in the Civil Registry where the marriage was registered, the Civil Registry of the place where the court is situated, and in the Philippine Statistics Authority (PSA). The Decree is annotated on the Marriage Certificate.
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