Role of Fiscal and Solicitor General. Collusion in Annulment cases.

In annulment cases, the prosecuting attorney or fiscal must be present. The Office of the Solicitor General can also be required to submit a memorandum. Aside from making sure that there is no collusion or that the evidence is fabricated it is their duty to defend valid marriage and expose invalid one. The prosecuting attorney must actively participate. Partial voluntary separation of property agreed upon by the parties duly approved by the courts prior to a judicial declaration of nullity is valid. It cannot be voided because of the nonparticipation of prosecuting attorney. In fact there is no showing that there is a need of participation in the prior agreements of parties by the prosecuting attorney. Maquilan vs. Maquilan GR 155409, June 8, 2007. Collusion. Collusion occurs where, for purposes of getting an annulment or nullity decree, the parties come up with an agreement making it appear that the marriage is defective due to the existence of any of the grounds for the annulment of marriage of the declaration of its nullity provided by law and agreeing to represent such falls or non-existent cause of action. Corruption implies a corrupt agreement between the husband and wife rendering dismissibe any annulment or nullity case initiated through the same. Significantly, failure to file an answer by the defendant whether deliberate or not to appear in court or be represented by counsel after the filing of his or her answer cannot itself be taken as an evidence of collusion especially since the fiscal is ordered to precisely prevent collusion. Aquino vs Delizo 109 Phil 21 Stipulation of Facts or Confession of Judgment. Annulment or declaration of nullity cannot be issued by the court on the sole basis of stipulation of facts or confession of judgment. The former being an admission by both parties made in court agreeing to the existence of the act constituting the ground for annulment or declaration of nullity while the latter id the admission made in court by the respondent or defendant admitting fault as invoked by the plaintiff to sever the marriage ties. Such confession however may be admitted when coupled with by other independent substantial evidence to support the main ground relied upon. Cardenas vs Cardenas and Rinen, 98 Phil 73 Support of Spouses and Custody of Children. While the annulment of marriage or declaration of nullity suit is being tried, the support of the spouses and the custody and support of the common children shall be governed by whatever agreement the parties have made with respect to the same. Principally, the spouses and their children shall be supported from the properties of the absolute community of property of the conjugal partnership of gains as the case may be. In nullity cases however, where the court provisionally gives support pendete lite to a spousewho, at the end of the case, has been found out to be not entitled to the support because his or her marriage with one giving the support void ab initio, the court shall order the recipient to return to the person who furnished the support.

The court shall give extra attention on the issue relative to the support and custody of the common children. The court shall give paramount consideration to the moral and material welfare of said children and their choice. In making the decision, the sex and age of the child are indeed very important considerations. However, the courts must go beyond such consideration such as the need of the child including their emotional, social, moral, material and educational needs. Visitation Rights. While custody of a child may be awarded to a particular parent, this does not deprive the other parent from exercising his or her visitorial rights unless the court, for some compelling reason, deprives him or her of this right. Parents have the natural right as well as the moral and legal duty to care for their children. This authority and responsibility may not be unduly denied to the parents. Above anything else, the welfare of the child is shall be of paramount consideration. Silva v. Court of Appeals 275 SCRA 604 Judgment of Annulment or Nullity of Marriage. The judgment of annulment or nullity of marriage shall state the factual and the legal basis for its dispositive conclusion. A court cannot grant any relief which is not based on the allegation of the petition unless issues related to the main case were presented without objection from any party. Should a court render a judgment which is not in conformity with the allegations in a pleading or which grants relief which is not based on the pleadings the judgment is void for being coram-non-judice. Tuason v CA 256 SCRA 158 Paragraphs 2, 3, 4 and 5 of Article 43 exceptionally apply only to void subsequent marriages that occur as a result of the non-observance of Article 40. Specifically they apply only to the subsequent void marriage contracted by the spouses of a prior void marriage before the latter is judicially declared void. This is the clear mandate of Article 50. Valdez v RTC, 260 SCRA 221 Unless there is a motion for reconsideration or an appeal made after the decision, such decision will become final upon the expiration of 15 days from receipt of the parties of the decision. Upon finality, the entry of judgment shall be issued. This decree shall be the best evidence of nullity or annulment of marriage. Presumptive Legitime. Legitime is that part of the testators property which he cannot dispose of because the law has reserved it for certain heirs who are called compulsory heris. The decree of annulment or nullity of marriage shall also provide that the presumptive legitime of the common of the common children shall be delivered to the same in cash. It shall be computed as of the date of the final judgment of the trial court. It shall be delivered in cash, property or sound securities unless the parties by mutual agreement judicially approved. In void marriages however, delivery of presumptive legitime is generally not required except only in the void subsequent marriage resulting from non-observance of Art 40.

Liquidation and Partition of Properties. The properties shall be liquidated in accordance with the ordinary rules of co-ownership. Liquidation process provided under the chapters on the absolute community of property and the conjugal partnership of gains will not apply in a void marriage except in a subsequent marriage void under article 40. If there are pre-nuptial agreements providing that separation of property regime governed the marriage, then there is no need for liquidation or partition. Valdez v RTC 260 SCRA 221 Status of Children. Generally, children conceived and born outside a valid marriage or inside a void marriage are illegitimate. Children conceived or born inside an annullable or voidable marriage are legitimate while those conceived and born inside a void marriage are illegitimate except as provided for in Article 54 of the Family Code. Hence, if the marriage is null and void because one of the parties is psychologically incapacitated to perform the essential marital obligations or because the parties to the subsequent marriage have not complied with the mandatory recording and distribution under Art 52 in relation to 53, the children conceived or born inside a void marriage under 36 and before finality of judgment of nullity in psychological incapacity or those conceived or born in a marriage which does not comply with Art 52 in relation to 53 shall be considered legitimate.