A Discussion on the Grounds for Legal Anulment

[ginapeterb]

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.


1. 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.

2. 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.

3. 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; © 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.

4. 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.

5. 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.

6. 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; © 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

[ginapeterb]

SOLUTIONS FOR PETITIONERS WORKING OVERSEAS


Q. I am planning to file an annulment case but I would like to know if my marriage was recorded. How will I do this?

You can check with the Local Civil Registrar of the place where where your marriage was solemnized. You can also go directly to the NSO at East Avenue, Quezon City. You can also request for a copy of your marriage contract on-line through NSO website here.

Q. Can I file the Petition for Annulment of Marriage even if I am working or residing overseas?

Yes. The New Rule allows a Petitioner who is currently residing overseas to file the Petition in the Philippines.

Q. If this is so, how do I file the Petition?

You must engage your lawyer, who will send you a copy of the Petition by e-mail. You can download the Petition in word format and print copies and sign it afterwards. After signing the Petition, you have to have this notarized and authenticated at the nearest Philippine Embassy in your area. The Philippine Embassy is at 9a Palace Gate, London W8 4QE, 0207 361 4641, After the Petition has been authenticated, send it back to us preferably by courier for filing with the court.

Q. Where do we file the Petition?

The petition shall be filed in the Family Court of the province or city where you or your spouse has been residing for at least six (6) months prior to the date of filing of the Petition, or in the case of a non-resident respondent-spouse, where he/she may be found in the Philippines. But you still have the option to file it at the place of your residence.

Q. What if my husband is outside the country or cannot be found in the Philippines. How do we go about it?

Your Petition needs to be published in the newspaper of general circulation once a week for three consecutives weeks. This is necessary so that the Court can acquire jurisdiction over the person of your husband and the petition can proceed even in his absence.

Q. Do I need to come home to attend the trial?

Yes, you have to come home to attend the trial especially during the pre-trial conference. Your Petition will be dismissed if you fail to attend the pre-trial conference. However, your non-appearance during pre-trial conference will be excused if you can give a valid reason like sickness.

Q. What are the stages of the trial where my presence in Court is necessary?

Your presence in court is absolutely necessary during pre-trial conference and during the time when you have to give your oral testimony. So it appears that you have to appear in Court at least twice.

Q. It is very difficult for me to leave my work, not to mention that it is also too expensive to come home just to attend the hearing on my Petition. Is there a way for me not to attend the trial?

None. You have to attend the trial. But we can try to schedule your testimony immediately after the pre-trial conference. This will minimize your travel expenses because you only have to come to the Philippines at least once.

Q. If I am the one filing the Petition, do I still need to take a psychological test?

Yes, you have to take the test because the psychological report is the very foundation of your Petition. In the psychological test, our resident psychologist will determine the psychological incapacities of your husband or as the case may be, your psychological incapacities. We usually recommend that you take the test prior to the filing of the Petition.

Q. Do I need to come home just to take the psychological test?

No.You need not come home to take the test. For purpose of filing the Petition, our resident psychologist will take your psychological testing on-line or through the internet. You will undergo a confirmatory test when you are already here.

Q. Is there a guarantee that my marriage will be annulled if I file the Petition?

No, there is no guarantee. The success of your Petition will always depend on the strength of evidence that we will present in Court.

Q. How do I track down the status of my case once it is already filed?

Most Firms have an on-line client extranet. Your case is on a database. You can track down the status of your case at a secured extranet anytime, anywhere using your username and password. You can also download filed copies of your Petition and other court documents in the database, consult your Lawyer about this.

Q. Are there any other concerns that I have to consider?

You have to further consider the custody and support of your children and separation of your absolute community properties, if any.

Q. Can I file a divorce case in the United Kingdom ?

Yes, you can but it will not be valid here in the Philippines. Our laws do not recognize foreign divorce instituted by Filipino citizens. You still have to file an annulment case before Philippine courts to annul your marriage.

Q. I am Now a British Citizen. I have an existing marriage with a Filipino in the Philippines. I wanted to end the marriage already. Do I need to file a Petition for Annulment before Philippine Courts?

No need to file the case. You can file a Divorce in the United Kingdom. instead. The Divorce decree will also be recognized in the Philippines allowing your Filipino husband to re-marry. The pertinent law is Article 26 of the Family Code.

[ginapeterb]

DIVORCE OBTAINED BY FORMER FILIPINO CITIZENS ABROAD

Q. I am a former Filipino citizen. I got married, also to a Filipino Citizen, in a church wedding in Manila on April 09, 1995. I migrated to the United Kingdom sometime in October 1996. I became a naturalized British Citizen in 2004. I divorced my Filipino wife after I became a British citizen. Do I still need to file a Petition for Annulment of Marriage before Philippine Courts?

No. There is no need to file the Petition. The Divorce that you obtained in UK was valid and recognized in Philippine jurisdiction. This is so because you are no longer a Filipino citizen when the Divorce Decree was issued. This issue was already settled by the Supreme Court in LLORENTE versus Court of Appeals G.R. No. 124371. November 23, 2000. This will also entitle your ex-wife to marry again.

Q: What if my ex-wife, who is a Filipina, was the one who a obtained a Divorce before UK Courts Is the Divorce valid? Is she entitled to remarry under Philippine Law?

No. The Divorce obtained by your Filipina wife is not valid. She
is not entitled to remarry because the Divorce which was obtained by her before UK Courts is not recognized under Philippine Law. As a Filipino citizen, the Family Code of the Philippines should be followed on how her marriage will be dissolved.

Q: I am a Filipino Citizen residing in the Philippines, I found out that my wife who went to work in the United Kingdom has a British man with whom she is conducting an affair, she has recently acquired indefinate leave to remain and is a UK Resident, recently, she obtained a Divorce in Britain. Is the Divorce valid under Philippine Law?

No. The Divorce is not valid under Philippine Law. Your Wife is still a Filipino citizen even though she has a legal permanent status in the United Kingdom,. As a Filipino citizen, the Family Code of the Philippines should be followed on how your marriage will be dissolved.


Petes Commentary

We can see from the above E mails that I responded to on advice of a anulment attorney are typical of some of the e mails that I receive on a daily basis, as far as the Philippines authorities are concerned, the key ingredient here is citizenship.

If a Filipina comes to UK and meets a British man, and co habits, she may be leaving herself open to be the respondent in a petition for a legal anulment by her husband, on the grounds that she is not fulfilling the obligations of marriage, if she then tries to divorce in a UK court, it may be valid in the United Kingdom if she tries to re-marry here in the UK, however, the divorce would n ot be recognized in the Philippines, as the Filipina is still subject to Philippine Laws, even though resident of another country, the only way the divorce would be recognized by the Philippine Authorities, is if the Filpina acquires naturalization of British Nationality, then as a British Citizen her divorce would be recognized, and incidentally her Filipino Husband would also be free to re-marry should he choose to.

For Filipino Citizens the only way to dissolve marriages to Filipino Citizens, is by adhereing to the procedures for dissolving marriages that took place in the Philippines.

I hope this helps, Im sure it will be the subject of much discussion, if anyone wants to bring any points forward please do so in a constructive manner, no jokes please, this subject matter is serious. Many thanks

[JimOttley]

DIVORCE OBTAINED BY FORMER FILIPINO CITIZENS ABROAD

Q. I am a former Filipino citizen. I got married, also to a Filipino Citizen, in a church wedding in Manila on April 09, 1995. I migrated to the United Kingdom sometime in October 1996. I became a naturalized British Citizen in 2004. I divorced my Filipino wife after I became a British citizen. Do I still need to file a Petition for Annulment of Marriage before Philippine Courts?

No. There is no need to file the Petition. The Divorce that you obtained in UK was valid and recognized in Philippine jurisdiction. This is so because you are no longer a Filipino citizen when the Divorce Decree was issued. This issue was already settled by the Supreme Court in LLORENTE versus Court of Appeals G.R. No. 124371. November 23, 2000. This will also entitle your ex-wife to marry again.

Q: What if my ex-wife, who is a Filipina, was the one who a obtained a Divorce before UK Courts Is the Divorce valid? Is she entitled to remarry under Philippine Law?

No. The Divorce obtained by your Filipina wife is not valid. She
is not entitled to remarry because the Divorce which was obtained by her before UK Courts is not recognized under Philippine Law. As a Filipino citizen, the Family Code of the Philippines should be followed on how her marriage will be dissolved.

Q: I am a Filipino Citizen residing in the Philippines, I found out that my wife who went to work in the United Kingdom has a British man with whom she is conducting an affair, she has recently acquired indefinate leave to remain and is a UK Resident, recently, she obtained a Divorce in Britain. Is the Divorce valid under Philippine Law?

No. The Divorce is not valid under Philippine Law. Your Wife is still a Filipino citizen even though she has a legal permanent status in the United Kingdom,. As a Filipino citizen, the Family Code of the Philippines should be followed on how your marriage will be dissolved.


Petes Commentary

We can see from the above E mails that I responded to on advice of a anulment attorney are typical of some of the e mails that I receive on a daily basis, as far as the Philippines authorities are concerned, the key ingredient here is citizenship.

I think I have just found the answer I have been looking for, for so long

My partner had already lost her Philippine citizenship when she and her Korean husband got divorced in Korea in 1997 but the divorce was not filed at the Philippine embassy in Seoul at that time.

She returned to Manila in 2000 but as a stateless person, somehow they let her in. She regained her Philippine nationality in 2007 under the repatriation law that allows a Filipino who lost citizenship through marriage to regain their citizenship REPUBLIC ACT NO. 8171

Now that she is back in Korea and has submitted her divorce details through the Philippine embassy in Seoul, I think when she gets her annotated marriage certificate issued by the NSO in a few months back in Manila that she will be free at last!

My reasoning stems from the example you post above - at the time of the divorce she was not a Filipino!

This is a great find, thank you so much, I found this just in time to get Ana to ask some very specific questions on Monday when she visits the Philippine embassy in Seoul

Often the problem is that if you don't know what to ask you don't know what people are actually doing for you.

Ana had already asked what the requirements were for divorce at the Philippine embassy in Seoul and they said something about it being no problem for her but we had not made it completely clear to them what we were trying to achieve. They might have just meant it was no problem for her in Korea so she is going back on Monday to ask some detailed questions.

Reading this post has come at exactly the right time as I now know exactly what she needs to ask the Philippine Embassy in Seoul.


Jim