The wife of my grandson filed a petition to have her marriage with the latter null and void. They have already talked about the case and decided that my grandson would no longer oppose the filing of the case. What are the chances of success in the case?
Dear Lola Lala,
It is provided under Article 151 of the Civil Code that “No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts towards a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed.” However this principle of earnest effort for conciliation between members of the family does not apply to the following cases: civil status of a person; validity of a marriage or a legal separation; any ground for legal separation; future support; jurisdiction of courts and future legitime (Article 2035, Civil Code).
In petitions for declaration of nullity of marriage, the Family Code of the Philippines under Article 48 thereof requires the active participation of the prosecuting attorney or fiscal assigned to it to appear on behalf of the state to take step to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. In connection thereto, the Supreme Court has laid down the rules governing the proceeding in declaring a marriage null and void under A.M. 02-11-10-SC, March 4, 2003 (Proposed Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages). Section 9 thereof provides:
“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 basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of a copy of the report. The court shall set the report for hearing and if convinced that the parties are in collusion, it shall dismiss the petition. (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.”
Based from the foregoing, the court shall not take into consideration the agreement of your grandson and his wife as to the declaration of nullity of their marriage. Aside from the fact that this matter cannot be subject to a compromise agreement between the spouses, the court shall decide the petition on the merits of the case based on the grounds as stated and proved during the proceeding. In fact, if the public prosecutor will find out about this agreement or the existence of collusion, he shall report this fact to the court wherein the petition will be dismissed accordingly.
We hope that we have answered your query. Our legal opinion may vary if other facts are stated or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com