Legal Procedures 23: Default or failure to answer

Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

[1] If the defendant fails to file his Answer within the prescribed period of time, then the plaintiff may file a motion, with due notice to the defendant, asking the court to declare the defendant in default. (Once declared in default, the defendant cannot participate in the hearings, but he is entitled to all notices.)

[2] Defaults are not allowed in legal separation, annulment, or declaration of the nullity of marriage. Please read the related post What happens in an annulment case if the respondent fails to file an Answer?

[3] In cases falling under the Rules on Summary Procedure, there is no declaration of default. If the defendant or respondent fails to file his Answer, then the complainant or petitioner can ask the court to render judgment.

[4] Effect of a partial default - when a complaint states a common cause of action against several defendants, some of whom answer and the others do not, but the answer alleges a common defense, the court shall try the case against all upon the answer thus filed and render judgment

[5] A judgment rendered against a party declared in default shall not exceed the amount or be different in kind from that prayed for, nor award unliquidated damages.

[6] Why do people fail to file their Answer?

A. Some people do not understand how the deadline set by the court for filing an Answer is computed. Normally, the court gives a fifteen-day period from the receipt of the summons for the filing of the Answer. The term “day” refers to calendar days, meaning, holidays and weekends are counted. If the last day falls on a holiday or a weekend, the Answer can be filed on the next working day.

B. Some people think that if they refuse to receive the summons from the court, the process will not proceed. This is wrong. If the person named as defendant or respondent in the summons does not want to accept it, the court sheriff or process server will “tender” the summons. The summons is considered as having been served on the defendant or respondent. The court sheriff or process server will then issue a “return” or certificate that he tendered the summons to the defendant or respondent. The period for filing the Answer thus begins from the time the summons was tendered.

C. Some people out of fear, ignorance, etc. do not give any attention to the summons. When they do consult a lawyer, it is usually after the period for filing the Answer has already lapsed.

Remedies of a party declared in default

A. If the court grants the motion to declare the defendant in default is granted:

• The court issues an order of default and renders its judgment, unless it requires the plaintiff to submit his evidence (in ex-parte proceedings before the court itself or a commissioner).
• Before the judgment is rendered, the defendant may file a motion under oath to set aside the order of default upon proof that his failure to answer was due to fraud, accident, mistake or excusable neglect (also known as FAME), and that he has a meritorious defense.

B. If the defendant’s motion to set aside the order of default is denied, then the plaintiff presents his evidence ex-parte.

• If the plaintiff proves his allegations, then the court renders judgment by default.
• (The defendant however still has some remedies available in this kind of situation)
• If the plaintiff is not able to prove his allegations, then the court dismisses the case.

C. The order of default may be set aside on terms imposed by the judge. The defendant then files his answer. The case is then set for pre-trial (upon motion of the plaintiff).

Legal Procedures 22: Filing of complaint and answer in civil cases

Supreme Court materials on the new system known as “Face-to-Face Trial” A.M. No. 14-03-02-SC, March 8, 2014 that’s meant to speed up the resolution of case (external link)

Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

The usual way a civil case proceeds

1. The plaintiff files the complaint against the defendant and pays the filing fees with the Office of the Clerk of Court. The case is raffled off to a specific court branch.

2. The process server or the court sheriff serves the summons by handing it personally to the defendant, or if he refuses to receive and sign for it, by tendering it to him. In certain cases, summons may be published in a newspaper. (Please read Rule 14 - Summon.)

3. The summons is not served because:

(a) the plaintiff loses interest in pursuing the case by filing a notice of dismissal;

(b) the defendant cannot be located at the address stated in the complaint (the court may then issue an alias summons).

4. Jurisdiction over the defendant is acquired by his receipt of the summons. If it cannot be served, the court provisionally dismisses the case (that is, without prejudice to its revival once the defendant is located).

5. Defendant may file either (a) an answer or (b) a motion to dismiss. This must be submitted within fifteen days from receipt of the summons. The period to answer however may be extended by the court upon motion. (Please read Rule 11 - When to file responsive pleadings.)

6. If the court denies the motion to dismiss, the defendant must file his answer within the remaining time (which must not be less than five days from his receipt of the notice of denial). The practice of some judges is to require the defendant to file an answer and not a motion to dismiss. In such a case, the defendant must allege the grounds for dismissal as affirmative defenses in his answer.

Additional things to consider

(a) Before filing an answer, the defendant may file a “bill of particulars” pointing out defects in the complaint, the details desired, the vague allegations, etc. (Please read Rule 12 - Bill of particulars.)

(b) Husband and wife generally shall sue or be sued jointly since both are co-administrators of the community property or the conjugal partnership property. (Please read Rule 3 - Parties to civil actions.)

(c) The requirements for a class suit are common or general interest in the subject matter of the case, and the affected persons are so numerous that it is impracticable to join them all as parties.

(d) In case of transfer of interest, the action may be continued by or against the original party, unless the court directs the transferee to be substituted in the action or joined with the original party.

(e) The complaint must contain a certification against forum shopping. If there is none, the court will dismiss the complaint

(f) The venue of personal actions is the court of the place where the plaintiff (or any of the principal plaintiffs) resides, or where the defendant (or any of the principal defendants) resides, at the election of the plaintiff.

Forcible entry and unlawful detainer cases, and those involving title or possession of real property with an assessed value of Php 50,000. (in Metro Manila) shall be tried in the MTC wherein the real property involved or a portion thereof is situated.

The rules on venue however shall not apply in cases where a specific rule or law applies, and when the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (Please read Rule 4 - Venue of actions.)

(g) Venue: Where should the case be filed if there are several complainants?

The Supreme Court ruled in “Irene Marcos-Araneta, Daniel Rubio, Orlando G. Reslin, And Jose G. Reslin, Petitioners, vs. Court Of Appeals, Julita C. Benedicto, And Francisca Benedicto-Paulino, Respondents” that the case must be filed in the proper court of the residence of the principal complainant, as Sec. 2 of Rule 4 provides. The Court ruled:

Irene was a resident during the period material of Forbes Park, Makati City. She was not a resident of Brgy. Lacub, Batac, Ilocos Norte, although jurisprudence[44] has it that one can have several residences, if such were the established fact. The Court will not speculate on the reason why petitioner Irene, for all the inconvenience and expenses she and her adversaries would have to endure by a Batac trial, preferred that her case be heard and decided by the RTC in Batac. On the heels of the dismissal of the original complaints on the ground of improper venue, three new personalities were added to the complaint doubtless to insure, but in vain as it turned out, that the case stays with the RTC in Batac.

Litigants ought to bank on the righteousness of their causes, the superiority of their cases, and the persuasiveness of arguments to secure a favorable verdict. It is high time that courts, judges, and those who come to court for redress keep this ideal in mind.

(h) Difference between personal action and real action:

In a personal action, the plaintiff seeks the recovery of personal property, the enforcement of a contract, or the recovery of damages.

Real actions, on the other hand, are those affecting title to or possession of real property, or interest therein.

In accordance with the wordings of Sec. 1 of Rule 4, the venue of real actions shall be the proper court which has territorial jurisdiction over the area wherein the real property involved, or a portion thereof, is situated.

The venue of personal actions is the court where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. (Irene Marcos-Araneta vs. CA)

(i) Rules on indigent litigants (Spouses Algura v. The Local Government Unit of the City of Naga, et al. GR No. 150135, October 30, 2006)

Who is an indigent under Section 19 of Rule 141?

(1) The applicant’s gross income and that of the applicant's immediate family do not exceed an amount double the monthly minimum wage of an employee; and

(2) The applicant does not own real property with a fair market value of more than Three Hundred Thousand Pesos (PhP 300,000.00).

If the trial court finds that the applicant meets the income and property requirements, the authority to litigate as indigent litigant is automatically granted and the grant is a matter of right.

If the applicant for exemption meets the salary and property requirements under Sec. 19 of Rule 141, then the grant of the application is mandatory. On the other hand, when the application does not satisfy one or both requirements, then the applicant should not be denied outright; instead the court should apply the ‘indigency test’ under Section 21 of Rule 3 and use its sound discretion in determining the merits of the prayer for exemption.”

1997 Rules of Civil Procedure
Rule 1 – General Provisions

Rule 2 – Cause of action

Rule 3 – Parties to civil actions

Rule 4 – Venue of actions

Rule 5 – Uniform procedure in trial courts

Rule 6 – Kinds of pleadings

Rule 7 – Parts of a pleading

Rule 8 – Manner of making allegations in pleadings

Rule 9 – Effect of failure to plead

Rule 10 – Amended and supplemental pleadings

Rule 11 – When to file responsive pleadings

Rule 12 – Bill of particulars

Rule 13 – Filing and service of pleadings, judgments and other papers

Rule 14 – Summons

Rule 15 – Motions

Rule 16 – Motion to dismiss

Protection Order for abused husbands?

The Supreme Court has already ruled that the Protection Orders under RA 9262 cannot be used against a woman. The Court has in fact reprimanded or suspended several Family Court judges for issuing a TPO or a PPO against a woman (read, for example, “SC Dismisses Makati Family Court Judge, Stenographer”). Please read my previous posts:

• Hope and help for the battered woman (2): RA 9262 essential provisions
• Hope and help for the battered woman (3): RA 9262 Protection Orders

What about the rights of an abused husband?

I have received e-mails from men who have detailed how their wives have hurt, harassed or threatened them. A husband who has been physically hurt or is being abused by his wife can file the appropriate case under the Revised Penal Code. The question is, while the criminal case is ongoing, can he ask the court to issue an order requiring the wife to stay away from him? This is legally doubtful.

But, in petitions involving legal separation, annulment of voidable marriage or declaration of nullity of marriage, it can be argued that the “Supreme Court Rule on Provisional Orders” A.M. No. 02-11-12-SC provides the legal basis for a husband to ask the court to issue an order requiring his wife, among other things, to stay away from him so as to prevent any further harm. Let me explain.

The said Rule enumerates the procedures that our Family Court judges must follow in deciding the issue of custody and amount of financial support in relation to petitions for legal separation, annulment of voidable marriage or declaration of nullity of marriage. Please take note that:

1. This Rule became effective in 2003 or before RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” became effective in 2004; and

2. This Rule applies specifically to petitions for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation.

RA 9262 has its own Implementing Rules and Regulations and Rule on Violence Against Women and Their Children A.M. No. 04-10-11-SC. The speakers (active and retired Family Court judges) in the Mandatory Continuing Legal Education seminars I am attending say that they also use the Rule on Provisional Orders as guideline in granting orders in RA 9262 cases whenever appropriate.

Interestingly, under Section 7 of the Supreme Court Rule on Provisional Orders, ANY PERSON involved in petitions for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation, can ask for the issuance of an Order of Protection. Since Section 7 of the Rule speaks of “any person” seeking the Order of Protection, it can be argued that the husband, whether as petitioner or respondent, can ask the court for such order if the wife harasses, intimidates or threatens him. The Rule states:

Section 7. The court may issue an Order of Protection requiring any person:

(a) to stay away from the home, school, business, or place of employment of the child, other parent or any other party, and to stay away from any other specific place designated by the court;

(b) to refrain from harassing, intimidating, or threatening such child or the other parent or any person to whom custody of the child is awarded;

(c) to refrain from acts of commission or omission that create an unreasonable risk to the. health, safety, or welfare of the child;

(d) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods;

(e) to permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court;

(f) to comply with such other orders as are necessary for the protection of the child.

As I said, I have been attending the MCLE for the last two Saturdays. One of the speakers, a retired judge, said that she had issued an Order of Protection for a husband. She said, however, that husbands in general do not ask for such an order since no supposedly macho Filipino would want to admit that he is being physically abused by his wife.

How do courts determine which parent has the right of custody of the children in legal separation, annulment or declaration of nullity?

Please read my previous posts on the issue of custody: Can a mother be deprived of custody of her child? Custody battles over children: what determines fitness of a parent over another? Custody battles over children between grandparents and a father or mother

The Supreme Court Rule on Provisional Orders A.M. No. 02-11-12-SC enumerates the procedures that our Family Court judges must follow in deciding the issue of custody in relation to petitions for legal separation, annulment of voidable marriage or declaration of nullity of marriage. Please take note that:

1. This Rule became effective in 2003 or before RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” became effective in 2004; and

2. This Rule applies specifically to petitions for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation.

RA 9262 has its own Implementing Rules and Regulations and Rule on Violence Against Women and Their Children A.M. No. 04-10-11-SC. The speakers (active and retired Family Court judges) in the MCLE seminars that I am attending say that they also use the Rule on Provisional Orders as guidelines in granting orders in RA 9262 cases whenever appropriate.

Main guideline for award of custody: Best interests of the child

Section 4 of the Supreme Court Rule on Provisional Orders states:

In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child.

The court may likewise consider the following factors:

(a) the agreement of the parties;

(b) the desire and ability of each parent to foster an open and loving relationship between the child and the other parent;

(c) the child’s health, safety, and welfare;

(d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent;

(e) the nature and frequency of contact with both parents;

(f) habitual use of alcohol or regulated substances;

(g) marital misconduct;

(h) the most suitable physical, emotional, spiritual, psychological and educational environment; and

(i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit.

Order of preference in the award of custody

In keeping with Articles 214 and 216 of the Family Code, Section 6 of the Supreme Court Rule states:

The court may award provisional custody in the following order of preference:

(1) to both parents jointly;

(2) to either parent taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit;

(3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified;

(4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;

(5) to the child’s actual custodian over twenty-one years of age, unless unfit or disqualified; or

(6) to any other person deemed by the court suitable to provide proper care and guidance for the child.

The custodian temporarily designated by the court shall give the court and the parents five days notice of any plan to change the residence of the child or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the parents.

Section 5 of the Rule states that “appropriate visitation rights shall be provided to the parent who is not awarded provisional custody unless found unfit or disqualified by the court.”

Hold Departure Order for children while the petition for legal separation, annulment or declaration of nullity is ongoing

The Supreme Court Rule on Provisional Orders A.M. No. 02-11-12-SC enumerates the procedures that our Family Court judges must follow on these issues of custody, amount of financial support and Hold Departure Orders for children. Please take note that:

(1) This Rule became effective in 2003 or before RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” became effective in 2004; and

(2) This Rule applies specifically to petitions for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation.

RA 9262 has its own Implementing Rules and Regulations and Rule on Violence Against Women and Their Children A.M. No. 04-10-11-SC. The speakers (active and retired Family Court judges) in the MCLE seminars I am attending say that they also use the Rule on Provisional Orders as guidelines in granting orders in RA 9262 cases whenever appropriate.

With regards Hold Departure Orders for children, Section 6 of the Supreme Court Rule on Provisional Orders states:

Pending resolution of the petition, no child of the parties shall be brought out of the country without prior order from the court.

The court, motu proprio or upon application under oath, may issue ex-parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the child from the Philippines without the permission of the court.

The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order issued within twenty-four hours from the time of its issuance and through the fastest available means of transmittal.

The hold-departure order shall contain the following information:
(a) the complete name (including the middle name), the date and place of birth, and the place of last residence of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined;

(b) the complete title and docket number of the case in which the hold departure was issued;

(c) the specific nature of the case; and

(d) the date of the hold-departure order.

If available, a recent photograph of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined should also be included,

The court may recall the order, motu proprio or upon verified motion of any of the parties after summary hearing, subject to such terms and conditions as may be necessary for the best interests of the child.

Legal Procedures 20: Extinction and prescription of the crime; civil liability

Notes: (1) Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

(2) Criminal liability may be extinguished either totally (Art. 89, Revised Penal Code) or partially (Art. 94).

Total extinction takes place under the following:

(a) death of the convict
(b) service of sentence
(c) amnesty
(d) absolute pardon
(e) prescription of the crime
(f) prescription of the penalty
(g) marriage of the offended woman, in private offenses, as provided by Art. 344 RPC

Prescription of the crime - it is the forfeiture or the loss of the right of the State to prosecute the offender after the lapse of a certain period of time fixed by law (Art. 90, RPC)

Prescription of the penalty - it is the loss or forfeiture of the right of the State to execute the final sentence after the lapse of a certain period of time fixed by law (Art. 92, RPC).

Period of prescription of crimes punished by:

(a) death, reclusion perpetua and reclusion temporal - 20 years;

(b) other afflictive penalties - 15 years;

(c) correctional penalties - 10 years except arresto mayor which prescribes in 5 years;

(d) oral defamation and slander by deed - 6 months;

(e) light offenses - 2 months.

The prescriptive period for violation of Batas Pambansa Blg. 22 (bouncing checks) is 4 years.

Computation of the period of prescription of penalties

The period commences to run from the date the culprit evades the service of the sentence. It is interrupted:

(a) if the defendant surrenders;

(b) if he is captured;

(c) if he should go to a foreign country with which the Philippines has no extradition treaty; and

(d) if he should commit another crime before the expiration of the period of prescription (Art. 93, RPC).

Partial extinction of criminal liability, Art. 94, RPC : (1) conditional pardon; (2) commutation of sentence; (3) good conduct allowances during confinement; (4) parole; (5) probation.

Civil liability includes:

(1) restitution - the return or restoration of the thing;

(2) reparation of the damage caused - the court determines the amount of damages by considering the price of the thing itself, and its special sentimental value to the offended party;

(3) indemnification for consequential damages - includes those caused to the injured party and those suffered by a third person by reason of the crime. (Art. 100 up to 113, RPC)

Legal lessons from the Kris Aquino - James Yap breakup: legal separation, annulment, declaration of nullity, requisites of marriage

Related post: Kris Aquino and James Yap cannot adopt Bimby jointly or sequentially; only one of them can adopt Bimby

Note as of August 18, 2010:

From the remarks made by the lawyer of James Yap, it seems that Kris and James got married twice before the same officiating minister. They had to get married again since in the first marriage, there was no parental advice from James’ mother.

(The news reports said that since James was only 23 years old at the time of the marriage, he needed parental consent for the marriage. This is wrong. Under the Family Code, persons from age 21 to 25 need parental advice, not parental consent. News reporters and their editors should really take the time to learn the basics of the Family Code.)

The questions are (1) Which marriage is considered as the official marriage, the first or the second? and (2) Did Kris and James obtain a marriage license for either the first or second marriage, or did they avail of Article 34?

Article 40 of the Family Code states that for purposes of remarriage, there must first be a declaration of nullity of the first marriage. But this provision contemplates a situation where the man or woman gets married the second time around to a different person (not the spouse in the first marriage). In Kris and James’ case, they got married to each other twice. As the saying goes, “things are getting curiouser and curiouser ...”

Note as of August 13, 2010:

According to various news reports on television, newspapers and the Internet, the grounds for Kris’s petition for declaring her marriage with James Yap void are:

1. The lack of authority of the solemnizing officer Rayda P. Tumaliuan, a minister of Holy Sacrament International Church, based on Article 35, paragraph (2) of the Family Code. (Several weeks ago, ABS-CBN reported that it was former Quezon City Mayor Sonny Belmonte who solemnized the marriage, and that Kris and James got married without a license)

2. Neither Kris nor James belonged to the minister’s religious sect contrary to what Article 7, paragraph (2) of the Family Code provides.

Since this case is already in court, I will not discuss its merits. But Article 35, paragraph (2) clearly provides for an exception which news reports failed to point out. The exception states: “If one or both parties believe in good faith that the solemnizing officer had the authority, then the marriage is valid.”

As to the issue that neither Kris nor James belonged to the denomination of the solemnizing officer, the news reports also failed to mention that there are two kinds of requisites of marriage under the Family Code: essential (Article 2) and formal (Article 3). I discussed below what these requisites are.

Article 4 of the Family Code states the effect of the absence or defect in the requisites:

The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35, paragraph (2).

A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.

Justice Paras in his “Pre-Week Handbook in Civil Law” summarizes Article 4 in this way:

• Absence of any of the essential requisites – the marriage is void ab initio.
• A defect in any of the essential requisites – the marriage is voidable.
• Absence of any of the formal requisites – the marriage is void ab initio.
• An irregularity in any of the formal requisites – the marriage is valid but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.

It seems to me that the novel (and interesting) issue that the court will decide is whether the non-membership of Kris and James in the denomination of the solemnizing officer is an absence or merely an irregularity (defect) in a formal requisite of marriage. If it is an absence, then the marriage is void. If it is merely an irregularity or a defect, then the marriage is valid.
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Last night, ABS-CBN’s TV Patrol showed an exclusive interview by Marie Lozano with the lawyers retained by Kris Aquino to end her marriage to James Yap. Kris’s lawyers said that she is seeking the declaration of nullity of her marriage and not simply a legal separation. Lozano then stated the background for the petition. It seems that Kris and James got married in Boy Abunda’s house with Quezon City Mayor Sonny Belmonte officiating the marriage. As the news report revealed however, Kris and James did not have a marriage license. It was only the day after the “wedding” that Kris got a marriage license from Makati.

(You can read the TV Patrol report by Marie Lozano in the ABS-CBN website; the problem is, Lozano isn’t a lawyer, and, so, she didn’t know what the right questions should have been. Or maybe, as a condition for the exclusive interview, she might have been told beforehand what questions to ask and what not to ask. Incidentally, Lozano’s report as you can still view in YouTube or in the embedded video above, uses a page from my Family Matters website as the background graphic in the 1:51 mark. Thanks a million!)

What legal lessons can we learn from this situation? The breakup of any marriage is a tragic event. What makes this situation between Kris and James (and Baby James) even more tragic is that, since they are both celebrities, their breakup is a very public event. One good thing that can possibly come out of this situation is that Filipinos, as they follow the developments o radio, TV and the Internet, will learn about Philippine laws on marriage and the family.

Differences among legal separation, annulment of voidable marriage and declaration of nullity of void marriage

Legal separation is different from annulment, and for that matter, annulment is different from declaration of nullity. Legal separation is governed by Articles 55 to 67 of the Family Code; if the court grants the petition, the spouses are separated but their marriage bond remains. This means that the couple cannot marry other parties, and the woman is still bound to use her husband’s surname. These are the reasons why Filipino couples in trouble do not want to file for legal separation.

“Annulment” refers to voidable marriages under Articles 45 and 46 of the Family Code. On the other hand, “declaration of nullity,” which Kris is seeking, refers to void marriages under Articles 35 to 41. Filipinos, who do not know the difference, generically use the term “annulment” to refer to both processes. The difference between legal separation on one side, and annulment and declaration of nullity, on the other, is that in the latter two cases, the spouses can later on get married to other parties. Annulment and declaration of nullity are not divorces; we do not have a divorce law in the Philippines. In divorce, the grounds arose after the marriage, while in declaration of nullity, the grounds were already there even before the marriage. In practical effect however, annulment and declaration of nullity are the same as a divorce; the couple (once their marriage has been dissolved) can marry other parties.

Essential and formal requisites of marriage

Unlike what some people think, Kris and James's marriage is valid even if it took place in Boy Abunda’s house and not in a church or in the mayor’s office. The ground for Kris’s petition for declaration of nullity is that she and James did not have a marriage license. They got the marriage license AFTER the wedding. The Family Code provides two requisites for marriage – essential and formal. Article 2 of the Family Code states what the essential requisites are:

Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer.

As the term denotes, the essential requisites are well, essential. Without the essential requisites, the marriage is void. (Please take note, however, of my discussion on Article 40 of the Family Code below.)

Difference between parental consent and parental advice; minimum marrying age under the Family Code different from the New Civil Code

The Family Code states that the minimum marrying age is 18; the marriage is void for anyone who gets married below 18 even if such marriage had the consent of the parents. For persons between 18 to 21, parental consent is necessary for marriage. For persons above 21 (and one day) to 25, only parental advice is needed. If there is no parental advice or if the advice is adverse, there is a mandatory waiting period of three months before the marriage license is issued. For persons above 25 (and one day), no parental consent or advice is necessary.

The Family Code of the Philippines became effective on August 3, 1988. Before the Family Code became efective, the prevailing law on marriage was the New Civil Code of the Philippines. Under the NCC, the minimum marrying age was 14 for women and 16 for men.

Lack of a valid marriage license makes the marriage void

The marriage license is a formal requisite as Article 3 of the Family Code states:

Art. 3. The formal requisites of marriage are: (1) Authority of the solemnizing officer; (2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

Kris’s petition for declaration of nullity is based on Article 4 which states: “The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).” The Family Code states exceptions when a marriage license is not required but these exceptions apparently dd not apply to Kris and James. (The exception in Article 35, paragraph 2 refers to a marriage solemnized by a person not legally authorized to do so; if any or both parties believed on good faith, however, that the solemnizing officer had the proper authority, the marriage is considered valid.)

Problems and questions with Kris’s petition

But if Kris and James got their marriage license only after the wedding, what did they state in their marriage certificate as to the date of their wedding? Did they make it appear in the marriage certificate that they got married after they obtained the license? If the marriage certificate shows that the date of the wedding is BEFORE the date of the issuance of the marriage license, then Kris may possibly use this as the basis for her petition.

If Kris and James made it appear in the marriage certificate, however, that they got married AFTER the issuance of the license, then Kris’s petition will run against the principle of equity. This principle states that “A person who comes to court must come with clean hands. This simply means that the court may dismiss Kris’s petition on the basis of equity since Kris and James brought this problem upon themselves. A public document on the files of the National Statistics Office like a marriage certificate is presumed regular. Will Kris be admitting in her petition that she misstated the date in her marriage certificate? On the basis of the presumption of regularity of public documents, the court may not believe Kris’s claim. The court can possibly say that Kris’s claim cannot be given any credence since it is self-serving. (The term “self-serving” has a technical legal meaning.)

If Kris will be claiming in her petition that she got her license after the wedding or that she misstated the date in her marriage certificate, she will put solemnizing officer Mayor (now Congressman) Sonny Belmonte in a very difficult situation. Mayor Belmonte, in compliance with the Family Code, should have required Kris and James to present to him their marriage license before he solemnized the marriage. I’m sure his political rivals will use this issue against him.

(The Family Code, which became effective in August 1988, removed from mayors the authority to solemnize marriages. But the Local Government Code of 1991 brought back to mayors this authority. I have been told that, in many towns and cities, the mayors simply sign the marriage certificate, with someone else conducting the actual marriage ceremonies.)

Difference between absence and defect in the requisites of marriage

Please take note of the difference between the absence of a marriage requisite and a defect in the requisite.

• The lack or absence of an essential or formal requisite makes the marriage void.
• A defect in the essential requisite does not affect the validity of the marriage, but there can be civil, criminal and administrative liabilities for the party or parties involved in the irregularity (second paragraph of Article 4).

Marriage contract or certificate is not an essential or formal requisite of marriage

The marriage contract or certificate is not an essential or formal requisite of marriage under the Family Code. Even if there is no copy of the marriage certificate in the files of the National Statistics Office, it cannot be said that the marriage is void. The existence or validity of the marriage can still be established through the marriage license, testimonies of the solemnizing officer and witnesses, etc.

Even if the marriage is void, there must be a court judgment declaring the marriage void

Article 40 of the Family Code provides that even if the marriage is void, the parties involved cannot take the law into their own hands and declare by themselves that the marriage is void. Under Article 40 of the Family Code, the party or parties should file a petition to have their marriage declared as void. If any party to a void marriage gets married again without complying with Article 40, he or she can be charged with bigamy.

What will be the status of Baby James? Parental authority and custody

If and when the marriage is declared void for lack of a valid marriage license, what will be the status of Baby James? This is an unclear legal issue at this point in time. Article 54 of the Family Code states: “Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.” Please take note that Kris’s petition, according to the news report, will not be for annulment of a voidable marriage or a declaration of nullity based on Article 36 (psychological incapacity). Her petition will be based on Article 4 or the absence of a formal requisite - the marriage license. Thus, Article 54 may possibly not apply to Baby James, that is, he may not be considered legitimate. We will have to wait for the court judgment on this issue.

If and when the marriage is declared void and Baby James is considered illegitimate, there is, however, a way he can become legitimate. Kris can file for adoption under RA 8552 “Domestic Adoption Act of 1998, and Baby James will become her legitimate child. If Baby James is adopted by Kris, can he later on be adopted by his father James? No; Article 187 of the Family Code states that “a person who has been adopted can no longer be adopted unless such adoption has been revoked or rescinded.”

But the Family Code provisions on adoption (Articles 183 to 193) have been superseded by RA 8552; for one thing, rescission of adoption is no longer allowed. Based merely on Article 187, however, it would seem that James can no longer adopt Baby James if and when he has already been adopted by Kris.

A question of surnames

If and when Kris’s petition for declaration of nullity is granted by the court, she will be able to use her maiden surname again. What about Baby James’s surname? Will it be changed to “Aquino” and no longer be “Yap”? The court can possibly rule that based on the legal principle of “best interests of the child,” Baby James can continue using his father’s surname.

But if the court rules in favor of Kris and orders the change of Baby James’s surname to “Aquino,” what can James do? Well, he can insist that Baby James continue using “Yap” in his birth certificate under RA 9255 and its Implementing Rules and Regulations. Please read my post “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines.”

The Implementing Rules and Regulations of RA 9255 make it mandatory for the illegitimate child to use the father’s surname if (1) the father acknowledges the child in the birth certificate or (2) issues a public or private instrument acknowledging the child, even if the mother does not give her consent to the use of the father’s surname. My stand is that the mother must give her consent before RA 9255 can be given effect. I have encouraged women who do not wish their children to use the father’s surname to file a petition to nullify the IRR of RA 9255. One good thing that can come out of this breakup between Kris and James is that Kris, with her financial capability to pay for lawyers, can file the necessary petition to nullify the IRR of RA 9255. If the guidelines are nullified, it will benefit not only Kris but a lot of women all over the Philippines.

Family Code provisions on custody

Lozano’s report cited Article 213 of the Family Code which provides that “no child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” Her report stated that, according to the lawyers, Kris is willing to share custody with James. Not being a lawyer, Lozano may have misunderstood the lawyers’ statements; Article 213 of the Family Code will not apply to Kris, James and Baby James.

• During the course of the court hearings, custody will be shared by Kris and James based on their agreement or upon the court’s instruction. Please read my post “How do courts determine which parent has the right of custody of the children in legal separation, annulment or declaration of nullity?”
  
• If Baby James will be considered in the court judgment as illegitimate, however, parental authority (which includes custody) will belong exclusively to Kris under Article 176 of the Family Code. What James will have is visitation right. Please read my post “Visitation rights over illegitimate children”.

Pre-nuptial agreement; separation of properties between Kris and James

Lozano’s report also states that there is a question as to the separation of properties between Kris and Yap. She said that the lawyers did not reveal whether Kris and James had a pre-nuptial agreement. (Actually, the term used by the Family Code is “marriage settlement”.)

This is an interesting legal issue. If the marriage was void from the beginning, did the pre-nuptial agreement (if they had any) have any legal effect at all? If it had no legal effect, should Article 147 of the Family Code be the governing provision in this matter? This article provides that when a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their property relation is governed by the rules of co-ownership. In simpler terms, the wages and salaries, and properties acquired by Kris and James during their relationship belong to their co-ownership. The first two paragraphs of Article 147 state:

When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

Note: Please read my post “Family Code of the Philippines: Primer on marriage,” the comments, and my replies to the comments.

Legal Procedures 19: Duration of penalties

Notes: (1) Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

(2) What is the difference between reclusion perpetua and life imprisonment?

The Supreme Court in Administrative Circular No. 6-A-92 explained the substantial difference between reclusion perpetua under the Revised Penal Code and life imprisonment when imposed as a penalty by special law.

The Court explained that reclusion perpetua under the Revised Penal Code is imprisonment for at least thirty [30] years after which the convict becomes eligible for pardon, and carries with it accessory penalties like perpetual special disqualification, etc. On the other hand, life imprisonment as imposed by a special law does not appear to have any definite extent or duration, and does not carry with it any accessory penalty. The complete text Administrative Circular No. 6-A-92 is posted below:

The Court has observed that several trial judges, in their judgments of conviction for such serious offenses as Murder, Robbery with Homicide and Rape with Homicide under the Revised Penal Code and violation of Section 4, Art. II, RA 6425, as amended by P. D. 1675 [Dangerous Drugs Act], fail to appreciate and observe the substantial difference between reclusion perpetua under the Revised Penal Code and life imprisonment when imposed as a penalty by special law.

For the guidance of all concerned, the admonition by the Court on the subject in People vs. Penillos, January 30, 1992 [205 SCRA 546] is reproduced hereunder:

“As noted from the dispositive portion of the challenged decision, the trial court imposed the penalty of reclusion perpetua or life imprisonment. Evidently, it considered the latter as the English translation of the former, which is not the case. Both are different and distinct penalties. In the recent case of People vs. Baguio, [April 30, 1991, 196 SCRA 459], this Court held:

‘The Code (Revised Penal Code) does not prescribe the penalty of life imprisonment for any of the felonies therein defined, that penalty being invariably imposed for serious offenses penalized not by the Revised Penal Code but by special law. Reclusion perpetua entails imprisonment for at least thirty [30] years after which the convict becomes eligible for pardon. It also carries with it accessory penalties, namely: perpetual special disqualification, etc. It is not the same as life imprisonment which, for one thing, does not carry with it any accessory penalty, and for another, does not appear to have any definite extent or duration.’

“As early as 1948, in People vs. Mobe, reiterated in People vs. Pilones and in the concurring opinion of Justice Ramon Aquino in People vs. Sumadic, this Court already made it clear that reclusion perpetua is not the same as imprisonment for life or life imprisonment. Every Judge should take note of the distinction and this Court expects that, henceforth, no trial judge should mistake one for the other.”

(3) The Indeterminate Sentence Law (R.A. 4103, as amended) is meant to “uplift and redeem valuable human material and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness” through the shortening of the term of imprisonment of the convict, depending upon his behavior, physical, mental or moral record.

It does not apply, however, to offenses punished by death or reclusion perpetua; to those convicted of treason, conspiracy or proposal to commit treason; misprision of treason, rebellion, sedition or espionage, piracy; habitual delinquents; those who escaped from confinement or those who evaded sentence; those granted conditional pardon and who violated terms of the pardon; those whose maximum period of imprisonment does not exceed one year.

The basis of the application of the law is the penalty actually imposed and not that imposable by law. The Indeterminate Sentence Law covers crimes under the Revised Penal Code or by special law.

(4) Subsidiary penalty Art. 39 RPC: If the convict cannot pay the fine, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos. Subsidiary imprisonment is proper only if the principal penalty is prision correccional or lower. It does not violate the constitutional prohibition against imprisonment for non-payment of debts. If his finances improve, he must still pay.

Legal Procedures 18: Remedies after conviction

Notes: (1) Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

(2) A judgment of acquittal generally cannot be appealed except to pursue the civil liability of the accused. Every person criminally liable is also civilly liable (Art. 100, Revised Penal Code).

(3) The judgment whether of acquittal or conviction should establish the civil liability of the accused (Rule 120, Sec. 2) unless the complainant has reserved his right to file a separate civil action (Rule 111, Sec. 2).

(4) If the offended party is not satisfied with the award or is not indemnified as he may be entitled under the facts proved, he may appeal (Rule 122, Sec. 11, b). Actual, moral and exemplary damages may be awarded (Rule 111, Section 1).

(5) Motion to reopen - available only after either or both parties have presented their evidence; if the judgment has already been promulgated, the proper remedy is a motion for reconsideration or new trial.

Remedies after conviction

[1] Motion for modification of judgment of conviction - for example, by reducing the penalty imposed in view of a mitigating circumstance (Rule 120, Sec.7).

[2] Motion for reconsideration - pointing out errors of law or fact in the judgment, thus giving the court the opportunity to re-examine and correct its decision. (Rule 121, Sec. 1, 3 and 6)

[3] Motion for new trial - based on two grounds:

(a) Errors of law or irregularities committed during the trial which were prejudicial to the substantial rights of the accused; and

(b) New and material evidence which the accused could not with reasonable diligence have discovered and produced at the trial, and which if introduced and admitted, would probably change the judgment (Rule 121, Section 2).

[4] Appeal to a higher court - the accused may seek to appeal a judgment of conviction. If the conviction carries with it either reclusion perpetua (“life imprisonment”) or the death penalty, then the case is automatically elevated to the Supreme Court. An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter. Upon the perfection of the appeal, the execution of the decision appealed from shall be stayed as to the party who appealed. (Rule 122)

[5] Probation - this is available only if the penalty imposed is less than six years, the accused does not appeal the judgment and he has no prior conviction.

Legal Procedures 17: Promulgation of judgment in criminal cases

Notes: (1) Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

If the accused escapes or could not be located during trial

(2) If the accused escapes or could not be located during the trial, the court orders the confiscation of the bond, and the case is then archived so that the prescriptive period won’t run.

In case the accused is bonded, the court orders the bail bondsmen to produce the body of the accused (that is, to bring the accused to court). The trial proceeds in absentia if the accused was validly arraigned.

(3) Notice is given to the accused, requiring his presence at the promulgation of the judgment. The decision of the court is then read to the accused.

What is proof beyond reasonable doubt?

(4) “Proof beyond reasonable doubt” is the level of proof required for conviction in a criminal case. It does not mean such degree of proof as excluding the possibility of error or mistake. It is sufficient if it produces moral or absolute certainty as required by law. Moral certainty springs from such proof as will satisfy the judgment and conscience of the trial judge, as a reasonable man, that the accused is guilty of the crime charged.

Benefits for those unjustly accused, convicted and imprisoned but subsequently acquitted and released

(5) Under R.A. 7309, the following may ask for compensation with the DOJ Board of Claims: victims of violent crimes; a person unjustly detained and released without being charged; any victim of arbitrary or illegal detention; any person who was unjustly accused, convicted and imprisoned but subsequently acquitted and released.

Procedural rules in criminal cases involving juveniles

(6) Relevant provisions of Supreme Court Rule on Juveniles in Conflict with the Law

Sec. 30. Guiding Principles in Judging the Juvenile.– Subject to the provisions of the Revised Penal Code, as amended, and other special laws, the judgment against a juvenile in conflict with the law shall be guided by the following principles:

1. It shall be in proportion to the gravity of the offense, and shall consider the circumstances and the best interests of the juvenile, the rights of the victim, the needs of society in line with the demands of restorative justice.

2. Restrictions on the personal liberty of the juvenile shall be limited to the minimum. Where discretion is given by law to the judge to determine whether the penalty to be imposed is fine or imprisonment, the imposition of the former should be preferred as the more appropriate penalty.

3. No corporal punishment shall be imposed.

Sec. 31. Promulgation of Sentence.– If after trial the Family Court should find the juvenile in conflict with the law guilty, it shall impose the proper penalty, including any civil liability which the juvenile may have incurred, and promulgate the sentence in accordance with Section 6, Rule 120 of the Revised Rules of Criminal Procedure.

Sec. 32. Automatic Suspension of Sentence and Disposition Orders.– The sentence shall be suspended without need of application by the juvenile in conflict with the law. The court shall set the case for disposition conference within fifteen (15) days from the promulgation of sentence which shall be attended by the social worker of the Family Court, the juvenile, and his parents or guardian ad litem. It shall proceed to issue any or a combination of the following disposition measures best suited to the rehabilitation and welfare of the juvenile:

1. Care, guidance, and supervision orders;
2. Community service orders;
3. Drug and alcohol treatment;
4. Participation in group counseling and similar activities;
5. Commitment to the Youth Rehabilitation Center of the DSWD or other centers for juveniles in conflict with the law authorized by the Secretary of the DSWD.

The Social Services and Counseling Division (SSCD) of the DSWD shall monitor the compliance by the juvenile in conflict with the law with the disposition measure and shall submit regularly to the Family Court a status and progress report on the matter. The Family Court may set a conference for the evaluation of such report in the presence, if practicable, of the juvenile, his parents or guardian, and other persons whose presence may be deemed necessary.

The benefits of suspended sentence shall not apply to a juvenile in conflict with the law who has once enjoyed suspension of sentence, or to one who is convicted of an offense punishable by death, reclusion perpetua or life imprisonment, or when at the time of promulgation of judgment the juvenile is already eighteen (18) years of age or over.

(7) Relevant provisions of RA 9344 “Juvenile Justice and Welfare Act of 2006”

SEC. 37. Diversion Measures. - Where the maximum penalty imposed by law for the offense with which the child in conflict with the law is charged is imprisonment of not more than twelve (12) years, regardless of the fine or fine alone regardless of the amount, and before arraignment of the child in conflict with the law, the court shall determine whether or not diversion is appropriate.

SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law.

SEC. 39. Discharge of the Child in Conflict with the Law. - Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled.

The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law.

SEC. 40. Return of the Child in Conflict with the Law to Court. - If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the conditions of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment.

If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years.

SEC. 41. Credit in Service of Sentence. - The child in conflict with the law shall be credited in the services of his/her sentence with the full time spent in actual commitment and detention under this Act.

SEC. 42. Probation as an Alternative to Imprisonment. - The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her sentence taking into account the best interest of the child. For this purpose, Section 4 of Presidential Decree No. 968, otherwise known as the “Probation Law of 1976”, is hereby amended accordingly.

Judgment (Rules 120, Revised Rules of Court)

SECTION 1. Judgment; definition and form.—Judgment is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any. It must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts and the law upon which it is based. (1a)

SEC. 2. Contents of the judgment.—If the judgment is of conviction, it shall state (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived.

In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist. (2a)

SEC. 3. Judgment for two or more offenses.—When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense. (3a)

SEC. 4. Judgment in case of variance between allegation and proof.—When there is variance between the offense charge in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. (4a)

SEC. 5. When an offense includes or is included in another.—An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. (5a)

SEC. 6. Promulgation of judgment.—The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court.

If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the court which rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the bail bond pending appeal; provided, that if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed and resolved by the appellate court.

The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. If the accused was tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address.

In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru his counsel.

If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these rules against the judgment and the court shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice. (6a)

SEC. 7. Modification of judgment.—A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation. (7a)

SEC. 8. Entry of judgment.—After a judgment has become final, it shall be entered in accordance with Rule 36. (8)

SEC. 9. Existing provisions governing suspension of sentence, probation and parole not affected by this Rule.—Nothing in this Rule shall affect any existing provisions in the laws governing suspension of sentence, probation or parole. (9a)

Legal Procedures 15: Summary Procedure in criminal cases

Notes: (1) Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

(2) If there are two or more related cases, one under Summary Procedure and the others under ordinary procedure, then the rules on ordinary procedure will be followed.

(3) The rules of Summary Procedure are designed to expedite the hearings. After the witness has been sworn in and the private prosecutor, for example, has “offered the testimony of the witness,” the procedure generally goes like this:

Private prosecutor: “Mr. Witness, in relation to this case, do you remember executing any affidavit?”

Witness: “Yes, sir.”

Private prosecutor: “I am showing to you an affidavit previously marked as Exhibit ‘A’. What relation, if any, does this exhibit have with the affidavit you referred to?”

Witness: “This is the affidavit I executed”.

Private prosecutor: “On page 2 of Exhibit ‘A’, there is a signature above the printed name __________ marked as Exhibit ‘A-2-A’. Whose signature is this?”

Witness: “That is my signature.”

Private prosecutor: “Mr. Witness, do you affirm the truthfulness and veracity of the statements in your affidavit?”

Witness: “Yes, sir.”

Private prosecutor: (To the judge) “Your Honor, please, we are adopting the affidavit marked as Exhibit ‘B’ as constituting the direct testimony of this witness.”

Court: “Cross.”

The defense counsel, in this example, now conducts his cross examination. Of course, he must have read the affidavit beforehand.

(4) Some lawyers, after adopting the affidavit as the direct testimony of the witness, then make the mistake of asking the witness questions about the statements in the affidavit. The court will remind the lawyer that the rules of Summary Procedure are being followed in the case.

(5) Prohibited pleadings and motions. — The following pleadings, motions or petitions shall not be allowed in the cases covered by this Rule:

(a) Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for opening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third party complaints;
(l) Interventions.

Please read “Gloria Lucas, complainant vs. Judge Amelia A. Fabros, MeTC, Branch 9, Manila, respondent” for the Supreme Court clarification on “motion for reconsideration” as a prohibited pleading.

Revised Rule on Summary Procedure (criminal cases)

Sec. 11. How commenced. — The filing of criminal cases falling within the scope of this Rule shall be either by complaint or by information: Provided, however, that in Metropolitan Manila and in Chartered Cities. such cases shall be commenced only by information, except when the offense cannot be prosecuted de officio.

The complaint or information shall be accompanied by the affidavits of the compliant and of his witnesses in such number of copies as there are accused plus two (2) copies for the court's files. If this requirement is not complied with within five (5) days from date of filing, the care may be dismissed.

Sec. 12. Duty of court. —

(a) If commenced by complaint. — On the basis of the compliant and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the amused if in custody.

(b) If commenced by information. — When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph, the court shall issue an order which, together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf, serving copies thereof on the complainant or prosecutor not later than ten (10) days from receipt of said order. The prosecution may file reply affidavits within ten (10) days after receipt of the counter-affidavits of the defense.

Sec. 13. Arraignment and trial. — Should the court, upon a consideration of the complaint or information and the affidavits submitted by both parties, find no cause or ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial.

If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of guilty, he shall forthwith be sentenced.

Sec. 14. Preliminary conference. — Before conducting the trial, the court shall call the parties to a preliminary conference during which a stipulation of facts may be entered into, or the propriety of allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other matters may be taken up to clarify the issues and to ensure a speedy disposition of the case. However, no admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused.

Sec. 15. Procedure of trial. — At the trial, the affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination, redirect or re-cross examination. Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose.

Except in rebuttal or surrebuttal, no witness shall be allowed to testify unless his affidavit was previously submitted to the court in accordance with Section 12 hereof.

However, should a party desire to present additional affidavits or counter-affidavits as part of his direct evidence, he shall so manifest during the preliminary conference, stating the purpose thereof. If allowed by the court, the additional affidavits of the prosecution or the counter-affidavits of the defense shall be submitted to the court and served on the adverse party not later than three (3) days after the termination of the preliminary conference. If the additional affidavits are presented by the prosecution, the accused may file his counter-affidavits and serve the same on the prosecution within three (3) days from such service.

Sec. 16. Arrest of accused. — The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be on bail or on recognizance by a responsible citizen acceptable to the court.

Sec. 17. Judgment. — Where a trial has been conducted, the court shall promulgate the judgment not later than thirty (30) days after the termination of trial.

Sec. 18. Referral to Lupon. — Cases requiring referral to the Lupon for conciliation under the provisions of Presidential Decree No. 1508 where there is no showing of compliance with such requirement, shall be dismissed without prejudice and may be revived only after such requirement shall have been complied with. This provision shall not apply to criminal cases where the accused was arrested without a warrant.

Sec. 19. Prohibited pleadings and motions. — The following pleadings, motions or petitions shall not be allowed in the cases covered by this Rule:

(a) Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the preceding section;

(b) Motion for a bill of particulars;

(c) Motion for new trial, or for reconsideration of a judgment, or for opening of trial;

(d) Petition for relief from judgment;

(e) Motion for extension of time to file pleadings, affidavits or any other paper;

(f) Memoranda;

(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;

(h) Motion to declare the defendant in default;

(i) Dilatory motions for postponement;

(j) Reply;

(k) Third party complaints;

(l) Interventions.

Sec. 20. Affidavits. — The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein.

A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record.

Sec. 21. Appeal. — The judgment or final order shall be appealable to the appropriate regional trial court which shall decide the same in accordance with Section 22 of Batas Pambansa Blg. 129. The decision of the regional trial court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. Section 10 of Rule 70 shall be deemed repealed.

Sec. 22. Applicability of the regular rules. — The regular procedure prescribed in the Rules of Court shall apply to the special cases herein provided for in a suppletory capacity insofar as they are not inconsistent herewith.