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CASE FLOW Sources The Family Code A.M. 02-11-10-SC A.M. 02-11-12-SC 1.

. Filing of petition We will file the petition in the family court of Makati City. The Rules give us 3 alternatives1 but the Makati court would be the most convenient venue for you. Provisional Orders upon receipt of the petition, the court may issue motu proprio (without you applying for it, by its own volition) or upon your application under oath, provisional orders such as support, custody, visitation rights, etc., 2. Service of summons by the (by the clerk of court) and filing of answer The court will then serve respondent with summons. In laymans term, this is to notify him of the pending petition for declaration of absolute nullity/annulment of your marriage. He is given 15 days (in case summons is served personally) or 30 days (in case of summons by publication) to answer your petition. If he fails to answer or despite filing an answer he does not contest your petition, the court will order the prosecutor to investigate whether collusion exists between you and respondent. Collusion implies a corrupt agreement between the spouses and renders dismissible any annulment or nullity case initiated through the same.2 if you make it appear that your marriage is defective, or you merely fabricate evidence in order for the court to grant your petition, then there is collusion. If the prosecutor finds that collusion exists, you are given the chance to file your respective comments within 10 days from receipt of a copy of the fiscals report. The court shall set the report for hearing and if convinced that there is collusion, it shall dismiss the petition. 3. Pre-trial Before proceeding to trial, a pre-trial conference is mandatory. You or your counsel should prepare a pre-trial brief 3 and if you fail to do so, the case will

The petition may be filed in the following family courts, at your election: (a) In the family court where you (petitioner) have been residing for at least 6 months prior to the date of filing. (b) In the family court where your spouse, Respondent Ramoncito Santos has been residing for at least 6 months prior to the date of filing. (c) In case he is a non-resident respondent, where he may be found in the Philippines. Sta. Maria, Melencio, Persons and Family Relations Law (2010 Ed.) at page 317. 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;

be dismissed. In case it is respondent who does not file his brief, the court will still proceed with pre-trial but will require the prosecutor to investigate whether respondents non-appearance is again due to any collusion. You must attend the pre-trial conference because failure to appear at the pre-trial has the same effect as the non-filing of your pre-trial brief i.e. the dismissal of your petition. But the absence of respondent will not cause the dismissal of your case; the court will still proceed with pre-trial but will require the prosecutor to investigate whether respondents non-appearance is again due to any collusion. Even if there is no collusion, the prosecutor will still intervene during the trial to prevent the suppression of evidence or fabrication thereof. At the termination of the conference, the court will issue a pre-trial order. It is very important to include in your pre-trial brief all the evidence to be presented and the number and names of your witnesses including their affidavits because the brief will guide you during the pre-trial conference, and consequently, the outcome of the pre-trial order. You will no longer be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order shall control the trial of the case, unless modified by the court to prevent manifest injustice. 4. Trial Please see the attached guidelines 5. Decision; Appeal

In case your petition is denied - In case the family court does not grant the petition, you still have the remedy of appeal, but you must first file a motion for reconsideration (MR) or a motion for new trial (MNT)4 because these are the preconditions before an appeal is allowed. You are given 15 days to file the MR or MNT. In case the family court still denies you any reliefs, you have another 15 days to prepare and file your appeal. Do not think that you have a total of 30 days, again, you must first file an MR or MNT before the new 15 day period for

(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.

Please refer to the Rules of Court, Rule 37, for the grounds allowed for a MR or MNT.

appeal becomes operative. If you do not file said motions after the lapse of 15 days, you can no longer claim that you still have 15 days to appeal. Your failure to file the requisite motions, and thereafter an appeal, within the required periods will render the judgment as final. In case your petition is granted Please proceed to no. 6 for a more thorough discussion. Even if the family court acts favorably on the petition, the aggrieved party, say your husband, or the Solicitor General in behalf of the state (because it is the policy of the state to protect and strengthen the family as a basic social institution as provided for in the Constitution) may appeal the judgment. There is a possibility that the higher courts will overturn the judgment granting the petition unless the aggrieved party or the Solicitor General fails to appeal within 15 days. The pre-conditions mentioned above also apply to them. Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on 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 legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in a previous judicial proceedings.5 (please see discussion below)

6. Issuance of the decree of declaration of absolute nullity/ annulment The decree, which is the best evidence to prove the declaration of nullity/annulment of your marriage, will not be issued right away. The Rules6 provide that the decree of absolute nullity/annulment shall be issued only upon compliance with Articles 50 and 51 of the Family Code. The aforementioned articles (i.e. Articles 50 and 51) provide for the liquidation, partition and distribution of your properties as spouses. However, since you have already dissolved your absolute community with the necessary court approval, then upon finality of the decision, which is after 15 days (and there is no pending MR or MNT or an appeal) the court shall forthwith issue the corresponding decree after you have registered the entry of judgment granting

Sec. 21 of Rules on annulment/declaration of nullity as provided for by the Supreme Court (A.M. 20-11-10 SC). Rules on annulment/declaration of nullity as provided for by the Supreme Court (A.M. 20-11-10 SC).

the petition in 2 civil registries namely: where your marriage was celebrated and where the family court (where the petition was filed) is situated. Thus, aside from the mandatory requirements of Articles 50 and 51 of the Family Code, the Rules further require the registration of the judgment before the decree of declaration of nullity/annulment is issued. The judgment is different from the decree although both require registration; the decree will serve as the best evidence to prove the declaration of absolute nullity/annulment of your marriage, thus you need not prove that there is a judgment granting the petition for nullity/annulment because as long as the decree is registered, it will serve as notice to 3 rd persons. You will register the decree in the same places where you registered the judgment; you also have to register the decree in the NSO. If the summons was made by publication then you must also cause the publication of the decree once in a newspaper of general circulation.

GUIDELINES As the petitioner in this case, you have the burden of proving that respondent Ramoncito is (psychologically) incapacitated to understand what his marital obligations are (see guideline no. 6 below and footnote no. 7). The incapacity, as a ground for voiding the marriage must refer to his duties as a husband and a father to your children. The law does not define what psychological incapacity is and therefore, the determination is left solely with the courts on a case-to-case basis. Determination of psychological incapacity depends on the facts of the case. Each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts. case,
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However, in a very popular

the Supreme Court gave some guidelines (Molina Doctrine) in invoking Burden of proof to show the nullity of marriage belongs to the Root cause must be medically or clinically identified, alleged in the

and proving psychological incapacity. They are as follows: 1. plaintiff. 2. complaint, sufficiently proven by experts, clearly explained by the decision, must be psychological not physical. (The testimony of a psychologist is not mandatory but extremely helpful) 3. 4. spouse) 5. 6. Must be grave Essential marriage obligations are those embraced in articles 68 to Proven to be existing at the time of the celebration of the marriage Must be incurable (may be absolute or relative to the given

71 and Articles 220, 221, 225 with regard to parents and children. 9

Republic v. Dagdag G.R. No. 109975, (February 9, 2001) cited in Sta Maria supra at page 204. Republic of the Philippines v. CA and Molina G.R. No. 108763, (February 13, 1997).

The Family Code provides for the obligations of the spouses: Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (109a) Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (110a) Art. 70. The spouses are jointly responsible for the support of the family. Art. 71. The management of the household shall be the right and the duty of both spouses. Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties: (1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; (2) To give them love and affection, advice and counsel, companionship and understanding; (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, selfreliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; (4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; (5) To represent them in all matters affecting their interests; (6) To demand from them respect and obedience; (7) To impose discipline on them as may be required under the circumstances; and
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7.

Interpretations in National Appellate Matrimonial tribunal of

Catholic Church though not binding are persuasive

In a later decision,10 the Supreme Court held that the guidelines abovementioned are not decisive of the outcome of a certain case. Simply put, adhering strictly to the guidelines does not guarantee that your marriage will be declared void, conversely, non-compliance with those set forth does not automatically mean that the court will deny your petition. In the final analysis, the determination on whether article 36 (on psychological incapacity) is applicable depends on the facts of the case (and on a case to case basis). You must convince the family court that your spouse is indeed incapacitated to continue the marital union. If there are any doubts that he is not, then there is a probability that the court will deny the petition and you will be barred forever to file another petition, even if it is based on other grounds. Thus, you must prepare all the necessary information which will prove the sickness of your spouse. As already mentioned, the testimony of a doctor is not required but it would be really helpful if Ramoncito would be tested/ examined. Also, you must specify the instances, not merely vague testimonies, showing his illness. And since the ground under article 36 must exist before/at the time of marriage (that is, during the marriage ceremony), it would be wise to include data/ occurrences/ occasions prior to the ceremony which manifests his Dependent, Histrionic and Borderline Personality Disorders. It is crucial that you convince the court that this incapacity affects his obligations as a husband and father. If your petition is granted, it is as if there was no marriage that occurred between you and Ramoncito, but your children will remain legitimate. As a final note, although the law does not define what constitutes psychological incapacity, some instances or indications include:

(8) To perform such other duties as are imposed by law upon parents and guardians. Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. 10 Thus, in Te v. Te, the Supreme Court held: Lest it be misunderstood, we are not suggesting the abandonment of Molina in this case. We simply declare that, as aptly stated by Justice Dante O. Tinga in Antonio v. Reyes, there is need to emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity under Article 36. At the risk of being redundant, we reiterate once more the principle that each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts. And, to repeat for emphasis, courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.

violent behaviour/ grossly abusive conduct towards the spouse and/or common children, unjustified abandonment, constant refusal to cohabit or to have sexual intercourse, wilful refusal (such as laziness) without justifiable cause to support the family be it financial, moral or spiritual, vices such as drugs, gambling, and alcoholism, sexual infidelity or homosexuality, and even immaturity. 11

Based on Supreme Court Decisions, In fact, a bill is pending in the Senate to amend the current wording of article 36 to include the abovementioned instances (Senate Bill No. 396).
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