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In what cases is declaration or order of default not allowed?


(e) Where no defaults allowed. — If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (Sec. 3, Rule 9, Rules of Court)


Is the failure of the defendant to file the answer within the reglementary period a ground to declare him in default in all cases?

No. There are certain cases where a defendant cannot be validly declared in default even though he has not filed an answer within the reglementary period.


What are these cases?
  1. legal separation
  2. annulment, or 
  3. declaration of the nullity of marriage (L-A-D)

In these cases where the defendant does not file the answer, what is the procedure to be followed by the court?

If the defendant in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall:
  1. Order the prosecutor determine whether there was collusion between and among the parties.
  2. If there is no collusion, the court shall order the prosecutor to intervene for the State in order to see to it that the evidence submitted is not fabricated. [Sec. 3(e), Rule 9, Rules of Court]

A. M. No. 02-11-10-SC

The procedure in declaration of absolute nullity of void marriages and annulment of voidable marriages is provided for in A. M. No. 02-11-10-SC. Section 8 of said Rule states:

Sec.8. Answer. x x x

(2) If the respondent fails to file an answer, the court shall not declare him or her in default.

(3) Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties.


Ancheta vs. Ancheta
G.R. No. 145370, March 4, 2004

A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the State for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant-spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties. The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated.

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