Last Will and Testament: Basic Discussion Published by Atty.

Fred January 26th, 2008 in Family and Property Law and Tax and Estate Law. 1 Comment Share The settlement of a persons estate after his/her death, based on our experience, is potentially one of the more bitter litigations. Its never good to see relatives fighting each other. Some persons, with the intent of controlling the disposition of his/her properties after his/her death (and hopefully prevent fighting among his/her heirs over the properties left), prepare a last will and testament. Lets have a brief discussion on this matter. What is a last will and testament? A last will and testament, or simply a will, is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate. It is a document whereby a person, called the testator, disposes of his/her properties or estate, to take effect upon his/her death. The testator is the deceased person who made a last will and testament. The person who is given PERSONAL property through a will is technically called the legatee, while the person who is given REAL property in a will is called the devisee. The person named in the will who is entrusted to implement its provisions is called the executor. If the executor is female, she is formally known as the executrix. Is a will the same as inheritance? No. A will is different from inheritance, which includes all the property, rights and obligations of a person which are not extinguished by his death (Civil Code, Art. 776). In other words, the basic difference between a will and inheritance is that a will is the document that determines the disposition of the inheritance. If a document is entitled a last will and testament but it provides that all properties must be transferred during the lifetime of the testator, is this a will? No. A will takes effect upon death of the testator. If the disposition takes effect before his/her death, it is a donation and is governed by the formalities of and legal provisions on donations.

What are the kinds of wills? There are two kinds of wills holographic and notarial. A holographic will must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed (Article 810, Civil Code). On the other hand, a notarial will is governed by the following provisions of the Civil Code, among others: Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. What happens if theres no will or if a will is not probated? A will enables a person to have control over the disposition of his/her estate. In the absence of a will, the general provisions of law govern the disposition of the estate of the deceased person. The proceedings in the absence of a will is called intestate proceedings. What is probate? Probate is a special proceeding to establish the validity of a will. Probate is mandatory, which means that no will passes either real or personal property unless it is proved and allowed in a proper court. Courts in probate proceedings, as a rule, are limited to pass only upon the extrinsic validity of

the will sought to be probated, but the courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will, under exceptional circumstances. A will may be probated during the lifetime of the testator. This way, the testator could himself/herself affirm the validity of the will. What is reprobate? It is a special proceeding to establish the validity of a will previously proved in a foreign country. Can the heirs of the deceased person refuse to produce the will? The person who has custody of the will has the legal obligation to produce it. The practical problem with this is when only a few persons know about the existence of the will and all of them agree not to produce it. This is one of the reasons why some testators sometimes entrust the custody of a will to their lawyers, who are then obligated upon death of said testator to enforce the provisions of his/her will. In the case of Dy Yieng Sangio vs. Reyes (G.R. Nos. 140371-72 (27 November 2006), a petition for the settlement of the intestate estate was filed. The oppositors argued that the deceased has a holographic will and that the intestate proceedings should be automatically suspended and replaced by the proceedings for the probate of the will. A petition for probate of the holographic will was eventually filed. The Supreme Court ordered the probate of the will and the suspension of the intestate proceedings. According to the SC, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect. If a document is not entitled last will and testament, could it still be treated as a will? Yes. In the same case of Dy Yieng Sangio vs. Reyes, the document is entitled Kasulatan ng Pag-Aalis ng Mana. The document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of the testator himself. An intent to dispose mortis causa (upon death) can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latters property, the disinheritance, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator in favor of those who would succeed in the disinherited heir.

Preterition in Succession With regard to the issue on preterition, the compulsory heirs in the direct line were not preterited in the will. It was the testators last expression to bequeath his estate to all his compulsory heirs, with the sole exception of his eldest son. Also, he did not institute an heir to the exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners in the document did not operate to institute her as the universal heir. Her name was included plainly as a witness to the altercation between testator and his son. Considering that the questioned document is testators holographic will, and that the law favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code provides that no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to dispose of his property may be rendered nugatory. (Maninang v. CA, 114 SCRA 478). In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be probated. It is settled that testate proceedings for the settlement of the estate of the decedent take precedence over intestate proceedings for the same purpose. (Cuenco v. CA, 53 SCRA 360). Merry Christmas, everyone Additional Rules on Temporary Restraining Orders (TRO) on Foreclosures of Real Estate Mortgage Annulment, Divorce and Legal Separation in the Philippines: Questions and Answers Published by Atty. Fred January 11th, 2007 in Annulment and Legal Separation. 341 Comments Share There are many questions relating to annulment and divorce in the Philippines, and many of the concerns of our readers had already been addressed in previous articles. Nevertheless, to consolidate everything for everyones easy reference, here are the FAQs on annulment and divorce in the Philippines: Is divorce allowed under Philippine laws? No, divorce is not allowed in the Philippines. However, there are certain instances wherein the divorce secured abroad by the foreigner-spouse, and even by former Filipinos, are recognized under Philippine laws. More discussion here (Judicial Recognition of a Foreign Divorce Decree).

Would it make any difference if I marry abroad where divorce is allowed? No. Filipinos are covered by this prohibition based on the nationality principle, regardless of wherever they get married (and regardless where they get a decree of divorce). Discussions relating to Overseas Filipinos or OFWs are transferred in Part V. Is annulment different from a declaration of nullity of marriage? Yes. In essence, annulment applies to a marriage that is considered valid, but there are grounds to nullify it. A declaration of nullity of marriage, on the other hand, applies to marriages that are void or invalid from the very beginning. In other words, it was never valid in the first place. Also, an action for annulment of voidable marriages may prescribe, while an action for declaration of nullity of marriage does not prescribe. So, if a marriage is void from the very beginning (void ab initio), theres no need to file anything in court? For purposes of remarriage, there must be a court order declaring the marriage as null and void. Entering into a subsequent marriage without such court declaration means that: (a) the subsequent marriage is void; and (b) the parties open themselves to a possible charge of bigamy. What if no marriage certificate could be found? Justice Sempio-Dy, in the Handbook of on the Family Code of the Philippines (p. 26, 1997 reprint), says: The marriage certificate is not an essential or formal requisite of marriage without which the marriage will be void. An oral marriage is, therefore, valid, and failure of a party to sign the marriage certificate or the omission of the solemnizing officer to send a copy of the marriage certificate to the proper local civil registrar, does not invalidate the marriage. Also the mere fact that no record of marriage can be found, does not invalidate the marriage provided all the requisites for its validity are present. (Citations omitted) Can I file a petition (annulment or declaration of absolute nullity of marriage) even if I am in a foreign country? Yes, the rules recognize and allow the filing of the petition by Filipinos who are overseas. What are the grounds for annulment?

1. Lack of parental consent in certain cases. If a party is 18 years or over, but below 21, and the marriage was solemnized without the consent of the parents/guardian. However, the marriage is validated if, upon reaching 21, the spouses freely cohabited with the other and both lived together as husband and wife. 2. Insanity. A marriage may be annulled if, at the time of marriage, either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife. 3. Fraud. 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. Fraud includes: (i) nondisclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; (ii) concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; (iii) concealment of sexually transmissible disease or STD, regardless of its nature, existing at the time of the marriage; or (iv) concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage. However, no other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. 4. Force, intimidation or undue influence. If the consent of either party was obtained by any of these means, except in cases wherein the force, intimidation or undue influence having disappeared or ceased, the complaining party thereafter freely cohabited with the other as husband and wife. 5. Impotence. At the time of marriage, either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable. Impotence is different from being infertile. 6. STD. If, at the time of marriage, either party was afflicted with a sexuallytransmissible disease found to be serious and appears to be incurable. If the STD is not serious or is curable, it may still constitute fraud (see No. 3 above). What if a spouse discovers that his/her spouse is a homosexual or is violent, can he/she ask for annulment? Homosexuality or physical violence, by themselves, are not sufficient to nullify a marriage. At the very least, however, these grounds may be used as basis for legal separation. How is legal separation different from annulment?

The basic difference is this in legal separation, the spouses are still considered married to each other, and, thus, may not remarry. Is legal separation faster than annulment? Not necessarily. The petitioner in a legal separation, just like in an annulment, is still required to prove the allegations contained in the petition. More important is the mandatory 6-month cooling off period in legal separation cases. This is not required in annulment or declaration of nullity cases. The court is required to schedule the pre-trial conference not earlier than six (6) months from the filing of the petition. This period is meant to give the spouses an opportunity for reconciliation. What are the grounds for legal separation? 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner. 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation. 3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement. 4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned. 5. Drug addiction or habitual alcoholism of the respondent. 6. Lesbianism or homosexuality of the respondent. 7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad. 8. Sexual infidelity or perversion. 9. Attempt by the respondent against the life of the petitioner. 10. Abandonment of petitioner by respondent without justifiable cause for more than one year. The term child shall include a child by nature or by adoption.

Should I file a petition for legal separation, can I use my own sexual infidelity as a ground? It is interesting to note that among the grounds for legal separation, as listed above, only sexual infidelity or perversion is not qualified by the phrase of the respondent or by respondent. This may give the impression that the sexual infidelity of the petitioner, or the one who filed the petition, may be used as a ground in legal separation. We must consider, however, that legal separation is filed by the innocent spouse or the aggrieved party against the guilty spouse. What happens if after learning that your husband (or wife) is unfaithful (No. 8 above), you still co-habitate with him/her? This may be construed as condonation, which is a defense in actions for legal separation. In addition to condonation, the following are the defenses in legal separation: 1. Consent. 2. Connivance (in the commission of the offense or act constituting the ground for legal separation). 3. Mutual guilt (both parties have given ground for legal separation). 4. Collusion (to obtain decree of legal separation). 5. Prescription (5 years from the occurence of the cause for legal separation). If youre separated from your spouse for 4 years, is that a sufficient ground for annulment? No. De facto separation is not a ground for annulment. However, the absence of 2 or 4 years, depending on the circumstances, may be enough to ask the court for a declaration of presumptive death of the absent spouse, in which case the petitioner may again re-marry. See Can someone remarry without going to court due to absence or separation? What are the grounds for declaration of nullity of marriage? 1. Minority (those contracted by any party below 18 years of age even with the consent of parents or guardians). 2. Lack of authority of solemnizing officer (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. Absence of marriage license (except in certain cases).

4. Bigamous or polygamous marriages (except in cases where the other spouse is declared as presumptively dead). 5. Mistake in identity (those contracted through mistake of one contracting party as to the identity of the other). 6. After securing a judgement of annulment or of asolute nullity of mariage, the parties, before entering into the subsequent marriage, failed to record with the appropriate registry the: (i) partition and distribute the properties of the first marriage; and (ii) delivery of the childrens presumptive legitime. 7. Incestous marriages (between ascendants and descendants of any degree, between brothers and sisters, whether of the full or half blood). 8. Void by reason of public policy. Marriages between (i) collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; (ii) step-parents and step-children; (iii) parents-in-law and children-in-law; (iv) adopting parent and the adopted child; (v) surviving spouse of the adopting parent and the adopted child; (vi) surviving spouse of the adopted child and the adopter; (vii) an adopted child and a legitimate child of the adopter; (viii) adopted children of the same adopter; and (ix) parties where one, with the intention to marry the other, killed that other persons spouse, or his or her own spouse. 9. Psychological Incapacity. Psychological incapacity, which a ground for annulment of marriage, contemplates downright incapacity or inability to take cognizance of and to assume the basic marital obligations; not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant spouse. Irreconcilable differences, conflicting personalities, emotional immaturity and irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or perversion, and abandonment, by themselves, also do not warrant a finding of psychological incapacity. We already discussed the guidelines and illustrations of psychological incapacity, including a case involving habitual lying, as well as the steps and procedure in filing a petition. Please note, however, that there are still other grounds to declare a marriage as null and void. Annulment in the Philippines Posted by admin on Sunday, September 7th, 2008 Q: What documents do I need to give BC Philippines Lawyers to start the case for Annulment of Marriage? A: You will have to obtain the following documents:

a) An authenticated copy of your marriage certificate; and B) An authenticated copy of the birth certificate/s of your children (if any) from the National Statistics Office (NSO) Q: Both my husband and I are Filipino citizens living overseas. Can we file for an annulment in the Philippines? A: Yes, the rules of court now allow for non-resident Filipinos to file petitions of annulment of marriage in the Philippines. Q: What is the best city in the Philippines for me to file my petition of annulment? A: You, as the petitioner have the choice to file in the Family Court of the province or city where you or your husband/wife has been residing for at least 6 months prior to the of filing of the petition, or in the case of a non-resident respondent, where he/she may be found in the Philippines. Q: Do we need to go back to the Philippines to proceed with an annulment of marriage case? A: Yes, you will have to come to the Philippines. You will have to appear at least twice in court once for the Pre-trial and once to Testify. If you do not appear in court your petition will be dismissed. You can be excused from appearing at the pre-trial for valid reasons such as illness. Some Judges allow the non- appearance of the Petitioner in cases of Annulment of Marriage where the ground cited is Bigamous Marriage under Article 35 of the Family Code of the Philippines. Q: How long does it take to get an annulment? A: If the proceedings go smoothly, at least 6 months but there is no guarantee to that. There are factors that need to be taken into consideration that could delay the procedure such as but not limited to court-sanctioned postponement of hearings, and justifiable absences of State Prosecutor, if any.

thank you po sir. Dagdagan ko lang po. post ka pa ng ibang doctrines para ma retain sa utak ko hehe As to nature VOID - Inexistent from the time of performance VOIDABLE - Valid until annulled

As to susceptibility to ratification VOID - Cannot be ratified VOIDABLE -Can be ratified either by free cohabitation or prescription As to effect on property VOID - No community property, only co-ownership (Art147) VOIDABLE - Absolute community exists unless another system isagreed upon in marriage settlement As to effect on children VOID - Children are illegitimate Exceptions: a. In case of psycho incapacity (Art 36) b. Children born of subsequent marriage (Art 53 VOIDABLE - Children are legitimate if conceived before decree of annulment As to how marriage maybe impugned VOID a. May be attacked directly or collaterally but for purpose of remarriage, there must be judicial declaration of nullity. b. Can still be impugned even after death of parties c. Action for nullity does not prescribe VOIDABLE a. Cannot be attacked collaterally, only directly, i.e. there must be a decree of annulment b. Can no longer be impugned after death of one of theparties c. Action prescribes How would you distinguish between the manner of attacking a void from that of a voidable marriage? A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be attacked collaterally. Consequently, a void marriage can be questioned even after the death of either party but a voidable marriage can be assailed only during the lifetime of the parties and not after the death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. (Citing In re: Conzas Estate, 176 Phil. 192). A void marriage confers no legal rights upon the parties, as though no marriage had even taken place. Thus, its invalidity can be maintained in any proceeding in which the fact of marriage may be material, either direct or collateral, in any civil court between any parties at anytime, whether before or after the death of either or both the husband and the wife, and upon mere proof of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the courts. It is not like a voidable marriage which cannot be collaterally attacked except in direct proceeding instituted during the lifetime of the parties so that upon the death of either, the marriage cannot be impeached and is made good ab initio. (Nial, et al. vs. Bayadog, supra.

If a woman and her children are abandoned by her husband or live-in partner, what can she do to get financial support? Please read my Legal Updates blog post Support for abandoned woman and family. Through a Protection Order under RA 9262 Anti-Violence Against Women and Their Children Act of 2004, the court will order the husband (or live-in partner) and his employer to set aside a certain percentage of his salary to be remitted directly to the woman and her children on a monthly basis. If the husband (or live-in partner) and/or his employer fail to do so, they can be charged with contempt of court. The Family Code does not provide a specific percentage of the monthly salary for the support. It only provides that the amount of support is balanced between the necessities of the person asking for support and the financial capability of the person from whom support is being asked. Support shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. Please read also Hold Departure Orders for OFWs under RA 9262. My husband has an affair with his officemate. Can I charge him with adultery? No, you cannot charge your husband with adultery. Under the Revised Penal Code, adultery is a crime committed by a wife and her paramour. The case that can be filed can either be (1) concubinage against the husband AND the other woman, or (2) psychological violence against the husband alone under RA 9262 Anti-Violence Against Women and Their Children Act of 2004. Please read my Legal Updates blog post Adultery, concubinage and psychological violence (read also the comments and my replies to the comments). What is the so-called single parent leave under Republic Act No. 8972 Solo Parents Welfare Act of 2000? Section 8 of Republic Act No. 8972 states that in addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall be granted to any solo parent employee who has rendered service of at least one (1) year. Please take note of the phrase in addition to leave privileges under existing laws. The Implementing Rules and Regulations of RA 8972 state: Section 18. Parental Leave In addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall

be granted to any solo parent employee who has rendered service of at least one (1) year. The seven-day parental leave shall be non-cumulative. Section 19. Conditions for Entitlement of Parental Leave A solo parent shall be entitled to parental leave provided that: (a) He/She has rendered at least one (1) year of service whether continuous or broken at the time of the effectivity of the Act; (b) He/She has notified his/her employer of the availment thereof within a reasonable time period; and (c) He/She has presented a Solo Parent Identification Card to his/her employer. Section 20. Non-conversion of Parental Leave In the event that the parental leave is not availed of, said leave shall not be convertible to cash unless specifically agreed upon previously. However, if said leave were denied an employee as a result of non-compliance with the provisions of these Rules by an employer, the aforementioned leave may be used a basis for the computation of damages. Section 21. Crediting of Existing Leave If there is an existing or similar benefit under a company policy, or a collective bargaining agreement or collective negotiation agreement the same shall be credited as such. If the same is greater than the seven (7) days provided for in the Act, the greater benefit shall prevail. What if there are already benefits under company policies or provisions of the CBA? Can the parental leave still be availed of? The question that should be resolved is: Are the benefits similar to or greater than the parental leave under RA 8972? If not, then such benefits under company policies or CBA provisions cannot be credited under Section 21. Companies, in seeking ways to save on costs and expenses, sometimes refuse to grant the solo parent leave. They claim that that there are existing or benefits similar to the solo parent leave under company policies. If you are a solo parent working for a company that refuses to grant the solo parent leave by claiming that Section 21 of the IRR is applicable, then you should seek the help of the Public Assistance and Complaints Unit of the DOLE. The PACU will help you file a complaint and then call you and your employer to a mediation/conciliation conference. If nothing comes out of the conciliation, the PACU will endorse your complaint to the National Labor Relations Commission. What is the difference between adoption and simulation of birth?

Adoption is the legal process by which a child becomes the legitimate child of the adopting person/s. The law which governs domestic adoption is Republic Act 8552 or the Domestic Adoption Act of 1998. Simulation of birth on the other hand occurs when a childless couple, for example, comes into possession of a baby or child, given to them by a midwife, an unwed mother or a relative, and this couple then applies for a birth certificate, making it appear that the baby or child is their biological offspring. Under RA 8552, simulation of birth is a criminal offense punishable by eight years imprisonment and a fine of fifty thousand pesos. Please surf to my Salt and Light blog for the procedures in petitions for adoption. My husband found out that our marriage certificate is not on file with the National Statistics Office. He said that our marriage is therefore not valid, and that he can get married to another woman. Is my husband correct? Your husband is wrong. The lack or absence of a marriage certificate (or contract) in the files of the NSO does not make your marriage invalid. The marriage certificate (or contract) is not an essential or formal requisite for the validity of a marriage under the Family Code. The marriage certificate is a powerful documentary evidence of the existence of your marriage. Even then, however, the existence or validity of your marriage can be proven by other evidence - the marriage license, the testimony of the officiating minister and the witnesses, wedding pictures, etc. Should your husband therefore insist on getting married again, you can charge him with bigamy under the Revised Penal Code. What are the rights of illegitimate children? Under Republic Act 9255, Article 176 of the Family Code has been amended, allowing illegitimate children to use the surname of their father "if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. The father, however, has the right to institute an action before the regular courts to prove non-filiation during his lifetime." Also, whatever a legitimate child gets in terms of inheritance, the illegitimate child is entitled to one-half. For example, if the legitimate child gets one hundred thousand pesos as his share in the inheritance, the illegitimate child gets fifty thousand pesos.

Please take note that even if the child is using the biological father's surname under RA 9255, the child is still illegitimate. Thus, sole (exclusive) parental authority belongs to the mother. What the biological father has is visitation right. Please read the following Legal Updates blog posts: DNA testing to prove legitimacy or illegitimacy of children; Supreme Courts New Rule on DNA Evidence Visitation rights over illegitimate children What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines Article 176 of the Family Code: computing the legitimes of legitimate and illegitimate children; an illegitimate child gets one-half If a wife gets pregnant by a man not her husband, will the child be legitimate or illegitimate? My boyfriend and I are both above 21 years of age, and we want to get married, with our parents' consent. But the Local Civil Registrar won't issue a marriage license because my boyfriend can't produce his birth certificate. What can we do? Please point out to the LCR the last portion of Article 12 of the Family Code which states, "The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. " Is there any difference between annulment and declaration of nullity of marriage? Under Articles 35 up to 54 of the Family Code, some marriages are considered either void or voidable. Technically speaking, annulment refers to the legal action declaring void those marriages considered as voidable (that is valid until annulled). On the other hand, declaration of nullity refers to those marriages considered as void from the very beginning.

In laymen's language, however, annulment is often used as a generic term for the legal action concerning both kinds of marriages. What is the difference between divorce and declaration of nullity? In divorce (which is non-existent in the Philippines), the grounds or reasons for such arise during the marriage. In declaration of nullity of a marriage (as provided for by the Family Code), the grounds or reasons are already existing even before the marriage, but such grounds may have manifested themselves only during the marriage. In practical effect, however, both divorce and declaration of nullity of a marriage allow the former spouses to get married again to other persons. What is psychological incapacity? Article 36 of the Family Code provides, "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." The Supreme Court in the case of Santos vs. Court of Appeals stated, "psychological incapacity under Article 36 of the Family Code is not meant to comprehend all possible cases of psychoses. It should refer, rather, to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability." The Supreme Court expounded, in greater detail, in Republic v. Court of Appeals what psychological incapacity is: (1) The burden of proof to show the nullity of marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it as the foundation of the nation. It decrees marriage as legally inviolable, thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be protected by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. (2) The root cause of the psychological incapacity must be a) medically or clinically identified, b) alleged in the complaint, c) sufficiently proven by experts and d) clearly explained in the decision. Article 36 of the Family Code

requires that the incapacity must be psychological not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or physically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. (3) The incapacity must be proven to be existing at the time of the celebration of the marriage. The evidence must show that the illness was existing when the parties exchanged their I dos. The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, mild characteriological peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. Sexual infidelity, per se, however, does not constitute psychological incapacity within the contemplation of the Family Code. It must be shown that respondent Manuels unfaithfulness is a manifestation of a disordered personality which makes him completely unable to discharge the essential

obligations of the marital state and not merely due to his ardent wish to have a child of his own flesh and blood. An unsatisfactory marriage, however, is not a null and void marriage. Mere showing of irreconcilable differences and conflicting personalities in no wise constitutes psychological incapacity. As we stated in Marcos v. Marcos: Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts the marital bond at the time the causes therefore manifests themselves. It refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. In Barcelona vs. Court of Appeals, a 2003 case, the Supreme Court stated, "The obvious effect of the new Rules providing that expert opinion need not be alleged in the petition is that there is also no need to allege the root cause of the psychological incapacity. Only experts in the fields of neurological and behavioral sciences are competent to determine the root cause of psychological incapacity. Since the new Rules do not require the petition to allege expert opinion on the psychological incapacity, it follows that there is also no need to allege in the petition the root cause of the psychological incapacity. "Science continues to explore, examine and explain how our brains work, respond to and control the human body. Scientists still do not understand everything there is to know about the root causes of psychological disorders. The root causes of many psychological disorders are still unknown to science even as their outward, physical manifestations are evident. Hence, what the new Rules require the petition to allege are the physical manifestations indicative of psychological incapacity." Please read the following Legal Updates blog posts: The Amy Perez case: Psychological incapacity in annulment of marriages Sexual infidelity or promiscuity does not constitute psychological incapacity Irreconcilable differences not a ground for declaring a marriage null and void What happens in an annulment case if the respondent fails to file an Answer? For the legal procedures and steps, please read:

Supreme Court Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages What are the effects when a marriage is declared null and void under Article 36 of the Family Code? Articles 50 up to 54 of the Family Code provide for the effects when a marriage is annulled or declared null and void. Among others, the children are considered as legitimate, and their presumptive legitimes must be given to them before the judgment can become final. What is the difference between legal separation and declaration of nullity? The grounds or reasons are different, and more importantly, in legal separation, the spouses are not allowed to get married again to other parties. The wife also still has to use her husband's surname. (Practically no one therefore wants to file for legal separation; almost everyone in marital troubles will choose to have his or her marriage declared null and void.) Can I get married to my first cousin? No, you cannot. You are related to your cousin by four civil degrees, and thus any such marriage is prohibited by reason of public policy (Article 38 of the Family Code). From you to your father or mother, that is one degree. From your father or mother, to your grandparents, that is another civil degree. From your grandparents to your uncle or aunt, that is another degree. And from your uncle or aunt to your first cousin, is another degree, making a total of four degrees. How can I have my birth certificate corrected? For change of first name, and for correction of minor clerical errors, you can simply file an administrative petition with the Local Civil Registrar of your place of birth or residence, under Republic Act 9048, also called the "Guinigundo Law." For substantial errors, however, like errors in birthdates, gender, etc. you will still have to file the proper petition with the Regional Trial Court of the place which issued your birth certificate. My father died leaving some properties to my mother and three children, including me. How can we divide up his properties? What are the respective shares?

You and your fellow heirs can simply ask a lawyer to draw up a deed of extrajudicial settlement of your father's estate. You can then have it notarized, and then have the notice published in a newspaper of general circulation once a week for three weeks. After you pay the corresponding taxes, you can then present the deed, the notarized affidavit of publication and the official receipts, to the Register of Deeds so that new titles can be issued to your names (assuming of course that your father left real properties). Your mother gets one-half of the estate as her conjugal share. The remaining half will then be divided among your mother, you and your two other siblings. However, nothing prevents any heir from giving up his share of the inheritance or from choosing and getting a lesser amount. Thus, for example, instead of getting the farm in the province, one of the heirs may choose to get as his inheritance the brand new car.

Summary / Definition of terms [1] Testate or testamentary succession refers to situations where the person dies leaving a last will. [2] Legal or intestate succession refers to situations where the person died without a last will. [3] Decedent: the person who dies and whose property is to be divided [4] Testator: the person who dies leaving a last will [5] A notarial will is prepared and notarized by a notary-public; besides the testator, three attestation witnesses must sign the will. [6] A holographic will is completely written, signed, and dated by the person making the will. [7] Article 918 of the New Civil Code states the requisites of a valid disinheritance. [8] Article 921 of the New Civil Code states the grounds for disinheriting a spouse. [9] The law is strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside. [10] Whether notarial or holographic, the will must be probated before it can be given effect. Probate simply means that the will must be filed with and approved by the proper court. If the will has not been probated, ownership of real or personal properties mentioned in the will cannot be transferred to the heirs, and any disinheritance cannot be

given effect. Spouses no longer have the right to inherit from one another after their marriage is annulled (for voidable marriages) or declared null and void (for void marriages). In a legal separation under Articles 55 to 67 of the Family Code, Article 63, paragraph(4) disqualifies the offending spouse from inheriting from the innocent spouse by intestate succession (this term simply means without a last will and testament). Also, provisions in favor of the offending spouse in a last will previously executed by the innocent spouse is revoked by operation of law. There are situations however when the spouses are merely separated without having gone through the judicial process of annulment, declaration of nullity or legal separation. In some cases, physical separation became necessary became of abuse. In instances of actual separation of the spouses where there are no judicial proceedings for annulment, declaration of nullity or legal separation, I have counseled people to, at the very least, file a petition for judicial separation of property as provided for by Articles 134 up to 142 of the Family Code. Requisites and grounds for disinheriting a spouse I have counseled some people in extreme situations to disinherit their spouses. Please take note that the law is very strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside. You must seek the help of a lawyernotary public who is well-versed in the requisites of the New Civil Code of the Philippines. The requisites of valid disinheritance under Art. 918 of the New Civil Code are: [1] [2] [3] [4] [5] [6] [7] [8] It must be done in a valid will; It must be express; There must be a true cause; The cause must be existing; It must be total and complete; The cause must be stated in the will; The heir disinherited must be identified; The will must not have been revoked.

imprisonment of six years or more, and the accusation is false; [3] When the spouse, by fraud, violence, intimidation or undue influence causes the testator to make a will or to change it; [4] When the spouse has given cause for legal separation; [5] When the spouse has given grounds for loss of parental authority; [6] Unjustifiable refusal to support the children or the other spouse. Two kinds of will: notarial and holographic Under the New Civil Code of the Philippines, there are two kinds of wills: (1) notarial will, and (2) holographic will. As the name denotes, a notarial will is prepared and notarized by a notary-public. On the other hand, a holographic will is completely written, signed and dated by the person making the will (called the testator). Disinheritance through a Kasulatan ng Pag-Aalis ng Mana For more information about holographic wills, please read the Supreme Court decision in Dy Yieng Sangio vs. Reyes G.R. Nos. 140371-72 November 27, 2006. In this case, the testator executed a document entitled Kasulatan ng Pag-Aalis ng Mana where he disinherited his oldest child. The Supreme Court ruled: The document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of the testator himself. An intent to dispose mortis causa (upon death) can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latters property, the disinheritance, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator in favor of those who would succeed in the disinherited heir. Whether notarial or holographic, a will must be probated before it can be given effect Whether notarial or holographic, the will must be probated before it can be given effect. Probate simply means that the will must be filed with and approved by the proper court. If the will has not been probated, (1) ownership of real or personal properties mentioned in the will cannot be transferred to the heirs, and (2) any disinheritance cannot be given effect. Issues to be resolved in the probate of a holographic will In a petition to admit a holographic will to probate, the only issues to be resolved by the court are: (1) whether the instrument submitted is, indeed, the decedents last will and testament; (2) whether the will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the

The grounds for disinheriting a spouse under Art. 921 of the New Civil Code are: [1] When the spouse has been convicted of an attempt against the life of the testator, his or her descendants or ascendants; [2] When the spouse has accused the testator of a crime punishable by

time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedent. As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional circumstances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. (Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994, 236 SCRA 488). A lot of Filipinos, in their twilight years, have told their children that whoever would take care of them in their time of old age or sickness, would be the one to inherit from them. Those who will not do so will not receive anything by way of inheritance. In some cases, brothers and sisters have fought each other, claiming that those who took care of their parents in their old age are the only ones entitled to inherit. Here in the Philippines, we have the system of compulsory heirs under the New Civil Code. This simply means that certain individuals have the legal right to inherit from us. The only way we can deprive a compulsory heir of his inheritance is through the process of disinheritance. Also, under RA 8552 (Domestic Adoption Act of 1998), rescission of adoption is no longer allowed. This means that once adopted, a person cannot be un-adopted or dis-adopted (if there are such words) by his adoptive parents. What the adoptive parents can do is to disinherit the adopted child. The law is very strict in the matter of disinheritance. If the requisites are not complied with, the disinheritance can be set aside. You must seek the help of a lawyer-notary public who is well-versed in the requisites stated in the New Civil Code of the Philippines. (Please read the discussion below on the two kinds of will, notarial and holographic.) Grounds for disinheriting children and descendants Article 919 of the New Civil Code provides the grounds for disinheriting children and descendants (grandchildren), legitimate as well as illegitimate. The word "testator" mentioned several times below refers to the person making a last will and testament. Please take note that disinheritance must be done through a will. [1] When a child or descendant has been found guilty of an attempt against the life of the testator, his or her own spouse, descendants or ascendants; [2] When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation groundless;

[3] When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; [4] When a child or descendant by fraud, violence, intimidation or undue influence causes the testator to make a will or to change one already made; [5] A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; [6] Maltreatment of the testator by word or deed, by the child or descendant; [7] When a child or descendant leads a dishonorable or disgraceful life; [8] Conviction of a crime with the penalty of civil interdiction. Requisites for valid disinheritance of children and descendants The requisites of valid disinheritance under Art. 918 of the New Civil Code are:

It must be done in a valid will;

It must be express;

There must be a true cause;

The cause must be existing;

It must be total and complete;

The cause must be stated in the will;

The heir disinherited must be identified;

The will must not have been revoked.

A. M. MARCH 4, 2003

NO.

02-11-10-SC

RE: PROPOSED RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES. RESOLUTION Acting on the letter of the Chairman of the Committee on Revision of Rules of Court submitting for this Court's consideration and approval Proposed Rule on Declaration of Absolute Nullity of Void Marriages Annulment of Voidable Marriages, the Court Resolved to APPROVE same.chan robles virtual law library the the and the

The Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003chan robles virtual law library March 4, 2003 Davide, C.J. Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio Morales, Callejo, Sr. and Azcuna Ynares-Santiago, on leave Corona, on official leavechan robles virtual law library

RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES 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.chan robles virtual law library The Rules of Court shall apply suppletorily. Sec. 2. Petition for declaration of absolute nullity of void marriages. (a) Who may file. - A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (n)

(b) Where to file. - The petition shall be filed in the Family Court. (c) Imprecriptibility of action or defense. - An action or defense for the declaration of absolute nullity of void marriage shall not prescribe. (d) What to allege. - A petition under Article 36 of Family Code shall specially allege the complete facts showing the 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.chan robles virtual law library Sec. 3. Petition for annulment of voidable marriages. (a) Who may file. - The following persons may file a petition for annulment of voidable marriage based on any of the grounds under Article 45 of the Family Code and within the period herein indicated:chan robles virtual law library (1) The contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his or her consent, within five years after attaining the age of twenty-one unless, after attaining the age of twentyone, such party freely cohabited with the other as husband or wife; or the parent, guardian or person having legal charge of the contracting party, at any time before such party has reached the age of twenty-one;chan robles virtual law library (2) 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 or wife; (3) The injured party whose consent was obtained by fraud, within five years after the discovery of the fraud, provided that said party, with full knowledge of the facts constituting the fraud, has not freely cohabited with the other as husband or wife; (4) The injured party whose consent was obtained by force, intimidation, or undue influence, within five years from the time the force intimidation, or undue influence disappeared or ceased, provided that the force, intimidation, or undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other as husband or wife;

(5) 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, within five years after the celebration of marriage; and (6) The injured party where the other party was afflicted with a sexuallytransmissible disease found to be serious and appears to be incurable, within five years after the celebration of marriage. (b) Where to file. - The petition shall be filed in the Family Court. Sec. 4. Venue. - The Petition shall be filed in the Family 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 non-resident respondent, where he may be found in the Philippines, at the election of the petitioner. Sec. 5. Contents and form of petition. - (1) The petition shall allege the complete facts constituting the cause of action. (2) It shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved.chan robles virtual law library If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, the custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiring urgent action. (3) It must be verified and accompanied celebration of marriage. (b) Where to file. - The petition shall be filed in the Family Court.chan robles virtual law library Sec. 4. Venue. - The petition shall be filed in the Family 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. Sec. 5. Contents and form of petition. - (1) The petition shall allege the complete facts constituting the cause of action.chan robles virtual law library (2) it shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved.chan robles virtual law library

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 similarly requiring urgent action. (3) it must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by me petitioner. No petition may be filed solely by counsel or through an attorneyin-fact. If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country. (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. Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition. Sec. 6. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules:chan robles virtual law library (1) Where 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 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. (2) 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. Sec. 7. Motion to dismiss. - No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer.chan robles virtual law library

Sec. 8. Answer. - (1) The respondent shall file his answer within fifteen days from service of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by the respondent himself and not by counsel or attorney-in-fact. (2) If the respondent fails to file an answer, the court shall not declare him or her in default. (3) Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties. Sec. 9. Investigation report of public prosecutor. - (1) Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any. (2) If the public prosecutor finds that collusion exists, he shall state the on the finding of collusion within ten days from receipt of a copy of a report The court shall set the report for hearing and If convinced that the parties are in collusion, it shall dismiss the petition.chan robles virtual law library (3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial. Sec. 10. Social worker. - The court may require a social worker to conduct a case study and submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary. Sec. 11. Pre-trial. (1) Pre-trial mandatory. - A pre-trial is mandatory. On motion or motu proprio, the court shall set the 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. (2) Notice of pre-trial. - (a) The notice of pre-trial shall contain: (1) the date of pre-trial conference; andchan robles virtual law library (2) an order directing the 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 pre-trial.

(b) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial.chan robles virtual law library (c) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address. Sec. 12. Contents of pre-trial brief. - The pre-trial brief shall contain the following:chan robles virtual law library (a) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof;chan robles virtual law library (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. Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial under the succeeding paragraphs. Sec. 13. Effect of failure to appear at the pre-trial. - {a) If 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. (b) 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.chan robles virtual law library

Sec. 14. Pre-trial conference. -At the pre-trial conference, the court: (a) 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. (b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other makers as may aid in the prompt disposition of the petition. Sec. 15. Pre-trial order. - {a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall Issue a pre-trial order which shall recite in detail the matters taken up In the conference, the action taken thereon, the amendments allowed on the pleadings, and except as to the ground of declaration of nullity or annulment, 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. (b) Should the action proceed to trial, the order shall contain a recital of the following:chan robles virtual law library (1) Facts undisputed, admitted, and those which need not be proved subject to Section 16 of this Rule; (2) Factual and legal issues to be litigated;chan robles virtual law library (3) Evidence, including objects and documents, that have been marked and will be presented; (4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and (5) Schedule of the presentation of evidence. (c) The pre-trial order shall 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.chan robles virtual law library (d) The parties shall not 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.chan robles virtual law library (e) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications. Sec. 16. Prohibited compromise. - The court-shall not allow compromise on prohibited matters, such as the following: (a) The civil status of persons;chan robles virtual law library (b) The validity of a marriage or of a legal separation;chan robles virtual law library (c) Any ground for legal separation;chan robles virtual law library (d) Future support; (e) The jurisdiction of courts; and (f) Future legitime. Sec. 17. Trial. - (1) 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. (2) 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. (3} 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.chan robles virtual law library (4) 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.chan robles virtual law library 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 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. - (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 Article 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties. (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.chan robles virtual law library (4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties have no properties. If the parties have properties, the court shall observe the procedure prescribed in Section 21 of this Rule. 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.chan robles virtual law library Sec. 20. Appeal. - chan robles virtual law library (1) Pre-condition. - 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. (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. Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. - 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 previous judicial proceedings. Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage." (a) The court shall issue the Decree after:chan robles virtual law library (1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located; (2) 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 (3) The delivery of the children's presumptive legitimes in cash, property, or sound securities. (b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.chan robles virtual law library Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected. Sec. 23. Registration and publication of the decree; decree as best evidence. - (a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report td the court compliance with this requirement within thirty days from receipt of the copy of the Decree. (b) In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation.chan robles virtual law library (c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children.

Sec. 24. Effect of death of a party; duty of the Family Court or Appellate Court. - (a) 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 courts. (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. Sec. 25. Effectivity. - This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003.chan robles virtual