ANNULMENT HEARING WITHOUT THE RESPONDENT IN THE PHILIPPINES
(A comprehensive practitioner-level guide)
1. Why this situation comes up
Spouses frequently separate de facto long before either one files a petition for annulment (voidable marriage, Arts. 45–55, Family Code) or for declaration of nullity (void marriage, e.g., Art. 36 psychological incapacity). By the time a case is docketed the respondent may be abroad, hiding, indifferent, or otherwise unreachable. Because the court still needs jurisdiction over the person of the respondent, Philippine procedure provides multiple safeguards that culminate—if all else fails—in an ex parte hearing where only the petitioner appears.
2. Legal sources you must have on your desk
| Instrument | Key provisions on absent respondents |
|---|---|
| Family Code of the Philippines (E.O. 209, 1987, as amended) | Arts. 45–55 (annulment of voidable marriages); Art. 36 (nullity for psychological incapacity); Arts. 57–62 (effects of annulment) |
| A.M. No. 02-11-10-SC (Rule on Declaration of Absolute Nullity of Void Marriages & Annulment of Voidable Marriages, effective 15 March 2003) | Rule 3 §§4–6 (service and jurisdiction), Rule 9 (default), Rule 10 §1 (ex parte reception of evidence) |
| Rules of Court | Rule 14 (summons), Rule 9 (defaults), Rule 18 (pre-trial) applied suppletorily |
| A.M. No. 02-11-11-SC (Rule on Legal Separation) | Parallel provisions |
| A.M. No. 18-07-05-SC (2019 OSG Rule) | Clarifies OSG and prosecutor roles |
| Selected jurisprudence (non-exhaustive) | Republic v. Sandiganbayan (1993), Pesca v. Pesca (G.R. No. 136921, Apr 17 2001), Ninal v. Badayog (G.R. No. 133778, June 19 2000), Kalaw v. Fernandez (G.R. No. 166357, Sept 19 2011), Tan-Andal v. Andal (G.R. No. 196359, May 11 2021) |
3. Getting the court’s jurisdiction when the respondent is missing
Venue – petition must be filed in the RTC-Family Court of the province or city where: a. the petitioner has resided for ≥6 months immediately prior to filing, or b. the petitioner has resided for any period if residing abroad (Rule 2 §2).
Initial summons – personally serve on the respondent wherever found (Rule 3 §5).
If personal service fails:
Step Legal basis Practical notes Substituted service Rule 14 §7, Rules of Court Leave with a person of suitable age/discretion at residence or office. Sheriff must detail efforts in Return. Service by publication Rule 14 §14 (1) + Rule 3 §6 File a verified motion; show diligent but futile attempts at personal/substituted service; secure court order specifying newspaper of general circulation once a week for two consecutive weeks + registered mail to last known address. Posting (rare) Allowed by some courts where publication cost is prohibitive, citing Domagas v. Javier (G.R. No. 158095, June 25 2012). Only after these modes does the court acquire jurisdiction over the respondent in absentia.
4. Consequences of respondent’s failure to answer
Reglementary period – 15 days from service (Rule 4 §1).
No Answer filed → court, motu proprio or on motion, declares respondent in default (Rule 9, A.M. No. 02-11-10-SC).
Effects:
- Loses standing to participate except as to notice of judgment.
- Court still orders mandatory Investigating Prosecutor (from Provincial/City or OSG) to determine collusion (Rule 9 §2).
- The State, through the Office of the Solicitor General, remains an active party guarding marital status (Art. 48 FC; Republic v. Court of Appeals, 268 SCRA 198).
5. Ex parte presentation of evidence
After a default order, or when respondent fails to appear at pre-trial despite notice:
- Pre-trial proceeds with only petitioner, counsel, public prosecutor, and OSG (optional video-conference under A.M. 20-12-01-SC).
- Court issues Pre-Trial Order summarizing admitted facts and issues.
- Trial dates set; evidence may be ex parte (Rule 10 §1).
Evidence still STRICTLY required
| Element | Typical proof | Notes |
|---|---|---|
| Existence of marriage | PSA-certified marriage certificate | Mandatory primary document |
| Ground alleged | Testimony of petitioner, corroborative witness, expert (esp. psychologists for Art. 36), documentary exhibits | Tan-Andal (2021) relaxed medico-psychological report requirement but courts still prefer one |
| No collusion | Prosecutor’s Report | Condition sine qua non for decision |
| Children / property regime | Birth certificates, titles, CTCs, inventories | Determines custody, support, liquidation of ACP/CPG/conjugal partnership |
The judge is NOT allowed to grant the petition on default alone; he must make an “independent assessment of proof” (Pesca, 2001). Even unopposed petitions can still be dismissed.
6. Role of the Office of the Solicitor General & Prosecutor
- State as parens patriae – marital union involves public interest.
- Prosecutor – investigates collusion, appears at pre-trial and trial.
- OSG – files Comment (takes place of Answer if respondent silent) and may object, present rebuttal evidence, or appeal an adverse judgment.
- If OSG does not object the case is not automatically granted; the court must still scrutinize.
7. Judgment and after-effects when respondent never showed up
- Decree of annulment/nullity – becomes final 15 days after notice to parties and OSG, unless OSG appeals.
- PSA annotation – petitioner must submit copy of final decree & certificate of finality to PSA-Civil Registry for entry (Arts. 50-52 FC).
- Property liquidation – defaulting spouse entitled to his/her share; but if he/she cannot be located, share may be deposited in court or held in trust.
- Custody & support – orders bind respondent despite absence (Art. 49 FC).
- Succession consequences – void marriage: children legitimate only if putative spouse doctrine applies; voidable marriage: children legitimate prior to annulment.
- Right to remarry – petitioner free to remarry only after: a. personal service of final decree on respondent or b. its publication once in a newspaper of general circulation, if whereabouts unknown (Art. 52 (2) FC; A.M. 02-11-10-SC §5).
8. Frequently-litigated issues
| Issue | Key points |
|---|---|
| “Bustling abroad” respondent | Philippine courts maintain jurisdiction once alternative service completed, even if respondent later returns and moves to set aside judgment; Rule 9 §3 (relief from default) is discretionary. |
| Psychological incapacity proof without respondent | Tan-Andal (2021) adopted “totality of evidence” test; absence of personal examination of respondent not fatal if behavior is demonstrably grave, juridically antecedent, and incurable. |
| Collusion suspicion | Prosecutor may recommend dismissal even on default if admissions or circumstances indicate parties are in concert. |
| Bigamous second marriage | Court may proceed even if first spouse cannot be located; petition usually for declaration of nullity ab initio. |
| Foreign-residence & video testimony | A.M. 20-12-01-SC allows presentation by videoconference; petitioner must coordinate with Philippine Embassy/Consulate or private notary abroad. Respondent abroad who ignores e-Summons is still deemed served. |
9. Timeline overview (typical ex parte path)
| Stage | Timeframe* | Notes |
|---|---|---|
| Filing → Raffle | 1 week | |
| Summons attempts (personal/substituted) | 1–2 months | Depends on sheriff’s diligence |
| Motion & order for publication | 1 month | Publication runs 2 weeks |
| Counting of reglementary 15 days | Ends ~10 days after last publication (accounting for mailing) | |
| Default order + Pre-trial | 2–4 weeks | Prosecutor & OSG notified |
| Trial (ex parte) | 1–3 settings, 1 month apart | Evidence formally offered |
| Court decision | 90-day rule (Art. 8 Const.; Rule 10 §7) | Often 3–6 months |
| Finality & PSA annotation | Additional 1–2 months |
*Real-world delays (crowded dockets, OSG appeals) may double these figures.
10. Practical drafting tips for counsel
- Allege diligence – spell out attempts to locate respondent in the petition itself; attach barangay/neighborhood certifications, social-media screenshots, Bureau of Immigration hits.
- Have a publication budget – courts usually pick The Manila Times, Philippine Star, or a local paper; costs ₱6,000–₱12,000.
- Prepare substitute return receipts – registry-return cards often get lost; ask Post Office for certification of mailing.
- Line up witnesses early – psychological expert reports and testimonies often take months.
- Coordinate with prosecutor – provide draft pre-trial brief so the prosecutor can more readily conclude absence of collusion.
11. Key Supreme Court pronouncements to cite
| Case | G.R. No. | Ratio relevant to absent respondent |
|---|---|---|
| Pesca v. Pesca | 136921 (2001) | Even if respondent defaults, court must ensure quantum of evidence. |
| Ninal v. Badayog | 133778 (2000) | Collusion inquiry indispensable; default does not remove it. |
| Kalaw v. Fernandez | 166357 (2011) | Respondent’s absence does not excuse poor evidence; petition dismissed. |
| Tan-Andal v. Andal | 196359 (2021) | No rigid need for respondent’s psychiatric evaluation. |
| Domagas v. Javier | 158095 (2012) | Validity of alternative modes of service when respondent unlocated. |
12. Common misconceptions debunked
| Myth | Correct rule |
|---|---|
| “If the respondent is abroad you can skip summons.” | Wrong. Summons must still be served—personally, through appropriate foreign channels (letter-rogatory), or by publication. |
| “Default automatically grants the petition.” | Wrong. Court still scrutinizes evidence; many petitions are denied for insufficiency even with no opposition. |
| “Publication cures jurisdictional defects.” | Only if preceded by diligent efforts at personal or substituted service. |
| “Your marriage is void the moment the judge signs the decision.” | It is void or voidable as a matter of law, but remarriage is illegal until the decree is final, recorded, and served/published under Art. 52 FC. |
13. Checklist for petitioners when the other spouse is nowhere to be found
- Verified petition cites ground and last known address of respondent.
- Affidavit of diligent search attached.
- Motion for leave to serve by publication prepared.
- Budget for publication and mailing arranged.
- Witnesses & expert lined up; PSA documents secured.
- Collusion investigation dates coordinated with prosecutor.
- Pre-trial brief drafted even if respondent absent.
- Certified copies of decision, decree, and certificate of finality ready for PSA filing.
- Newspaper clipping and registry receipts preserved for remarriage requirement.
CONCLUSION
Proceeding with an annulment or declaration of nullity without the respondent’s participation is not shortcut litigation. The Rules demand meticulous compliance with due-process oriented modes of service, evidence stricter than in ordinary civil cases, and the ever-watchful presence of the State via the prosecutor and the OSG. A petitioner who anticipates these hurdles—especially the proof of diligent search, absence of collusion, and sufficiency of substantive evidence—can nonetheless obtain a decree even if the other spouse never appears, thereby clearing the path to settle property relations, secure custody of children, and lawfully remarry.