Rule 9

Effect of Failure to Plead

1997 Rules on Civil Procedure

2001 Edition

Rule 9

EFFECT OF FAILURE TO PLEAD

General Rule: DEFENSES AND OBJECTIONS NOT PLEADED EITHER IN A MOTION TO
DISMISS OR IN THE ANSWER ARE DEEMED WAIVED
Section 1. Defenses and objections not pleaded. Defenses and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived.
However, when it appears from the pleadings or the evidence on record that the
court has no jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that the action is
barred by a prior judgment or by statute of limitations, the court shall dismiss
the claim. (2a)

GENERAL RULE: Defenses or objections not pleaded in a motion to dismiss or on

answer are deemed waived. If you do not plead your defense, the same is deemed waived.
The court has no jurisdiction over the issues.
EXAMPLE: In a collection case against you, you did not raise the defense of payment in
your answer. But during the trial, you attempted to prove that the loan has already been
paid. Now, that cannot be done because the defense of payment is deemed waived
because you did not raise it in your answer. In other words, the court never acquired
jurisdiction over the issue.
So, there is no such thing as a surprise defense because the defense must be pleaded.
If you want to surprise the plaintiff during the trial by not raising your defense in your
answer, you will be the one who will be surprised because the court will not allow you.
When the parties go to court, the plaintiff already knows what are the defenses. They are
already in the answer.
EXCEPTIONS:
Q: What defenses or objections can be taken cognizance of by the court despite the
fact that they are not raised in the motion to dismiss or answer?
A: Under Section 1, Rule 9, the following:
1.) That the court has no jurisdiction over the subject matter;
2.) That there is another action pending with the same parties for the same cause
(litis pendentia;
3.) That the action is barred by prior judgment (res adjudicata); and
4.) That the action is barred by statute of limitation (prescription).
Take note that the exceptions can be raised at any time during or after the trial, or
even for the first time on appeal.
Now, the traditional rule to remember notwithstanding the SIBUNGHANOY Doctrine, is
that, when there is a defect in the jurisdiction of the court over the subject matter, the
defect can be raised at any stage of the proceeding even for the first time on appeal
(Roxas vs. Raferty, 37 Phil. 957). This is because everything is null and void. Jurisdiction
over the subject matter cannot be conferred by agreement between the parties, by
WAIVER, by silence of the defendant.
LITIS PENDENTIA. You file a another case while another action is pending between the
same parties for the same cause. That is actually splitting a cause of action because there
is already an action and then you file another action. The action can be dismissed on the
ground that there is a pending action.
RES ADJUDICATA. There was already a prior final judgment then you file another case
regarding the same issue. That is also splitting a cause of action.

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PRESCRIPTION is not found in the old rule but is taken from decided cases. Among
which are the cases of
PNB vs. PEREZ (16 SCRA 279)
PEPSI COLA vs. GUANZON (172 SCRA 571)
HELD: The rule on waiver of defenses by failure to plead in the answer or in
a motion to dismiss does not apply when the plaintiffs own allegations in the
complaint show clearly that the action has prescribed in such a case the court
may motu propio dismiss the case on the ground of prescription.
Q: Can the court dismiss the action based on any of these grounds without the filing of
a motion to dismiss?
A: YES. It would seem so because the second sentence says, When it appears from the
pleadings or the evidence on record the court shall dismiss the claim. (This is an
important change)
Under the 1964 Rules, one of the grounds that you can raise at any stage of the
proceeding before judgment is failure to state a cause of action, but it disappears under
the new rules. Does it mean to say that you cannot raise it anymore? NO. It can still be
raised because it can be taken care of by another rule Rule 33 on Demurrer.
Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred.
compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a)

See discussions on Rule 6, Sections 7 and 8 on counterclaim and cross-claims,

respectively.
RULE ON DEFAULT
Sec. 3. Default; declaration of. If the defending party fails to answer
within the time allowed therefor, the court shall, upon motion of the claiming
party with notice to the defending party, and proof of such failure, declare the
defending party in default. Thereupon, the court shall proceed to render
judgment granting the claimant such relief as his pleading may warrant, unless
the court in its discretion requires the claimant to submit evidence. Such
reception of evidence may be delegated to the clerk of court. (1a, R18)
x x x x x x

A defending party is declared in DEFAULT if he fails to answer the complaint within the
time allowed therefor. The rule on answer is found in Rule 11. And under Rule 11 as a rule,
you have 15 days to file an answer counted from the time you are furnished a copy of the
complaint together with the summons
If the period to answer lapsed and there is no answer, the plaintiff will move to declare
the defendant in default on the ground of failure to file an answer to the complaint. So,
the court will issue an order of default declaring you as a defaulted defendant.
And from the time a party is declared in default, he loses his standing in court,
although he is still entitled to notice of subsequent proceedings. He cannot participate in
the trial. He cannot object to plaintiffs evidence. He cannot present his own evidence. In
effect, the case will be decided only on the basis of plaintiffs side without anymore
hearing the defendant. And of course, the plaintiff will win. It is like a boxing bout ba
where the rule is, isa lang ang mag-suntok. My golly! How can you win in that situation?
That is the effect of default.
Take note that the word defending party applies not only to the original defendant but
even to the cross-defendant or defendant in a counterclaim.
Q: May a court declare a defendant in default without any motion?
A: NO, because the law says, upon motion of the claiming party.

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Now, with NOTICE to the defending party is a new one. You must furnish a copy to the
defending party of your motion to order the defendant in default which abrogates previous
rulings.
Q: Suppose the defendant filed an answer but during the trial, he failed to appear. May
he be declared in default?
A: NO, because the ground for default is failure to file an answer. The correct procedure
is for the trial to proceed without him. (Go Changjo vs. Roldan Sy-Changjo, 18 Phil. 405)
That is what you call EX-PARTE reception of evidence. Only one side will be heard.
BAR QUESTION: If the defendant is declared in default for failure to file an answer is
deemed to have admitted the allegations in the complaint to be true and correct?
A: YES, because the law NOW says, the court shall proceed to render judgment
granting such claimant such relief as his pleading may warrant. The reception of
plaintiffs evidence is already dispensed with. Wala ng reception of evidence. That is the
GENERAL RULE. That is the same as the summary rules and judgment on the pleadings
and the court can grant the relief without presentation of evidence.
HOWEVER under Section 3, it is discretionary upon the court to require the claimant to
submit evidence. EX-PARTE RECEPTION of evidence is OPTIONAL for the court. And such
reception of evidence may be delegated to the clerk of court. This is related to Section 9,
Rule 30:
Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of court.
The judge of the court where the case is pending shall personally receive the
evidence to be adduced by the parties. However, in default or ex parte hearings,
and in any case where the parties agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a member of the bar. The
clerk of court shall have no power to rule on objections to any question or to
the admission of exhibits, which objections shall be resolved by the court upon
submission of his report and the transcripts within ten (10) days from
termination of the hearing. (n)

The reception of evidence maybe delegated to the clerk of court but the clerk of court
must be a lawyer, that is the condition. So if he is not a member of the bar, he is not
authorize to conduct or hear an ex-parte reception of evidence.
SUMMARY: Steps when the defendant fails to file an answer within the time allowed:
1.) Motion to declare defendant in default;
2.) Order of default;
3.) Judgment based on the complaint of the plaintiff UNLESS court requires the
claimant to submit evidence (ex-parte presentation of plaintiffs evidence)
However, when should the court dispensed with the ex-parte presentation of evidence
and when should it require the claimant to submit evidence being discretionary? May
ibang judges who likes kapoy na, judgment kaagad! May iba naman, reception muna
which will take time. In my personal view, cases which are simple, presentation of
evidence ex-parte can be dispensed with like collection cases ba. Walang laban ang
defendant talaga.
But in controversial cases, like recovery of a piece of land medyo mahirap yan. The
judge will not automatically decide in your favor simply because of failure to answer by
the defendant. The judge may still want to hear plaintiffs evidence. To my mind, that
should be the policy regarding this rule.
Q: If a defendant files an answer but did not furnish a copy of the answer to the
plaintiff, can the plaintiff move to declare the defendant in default?
A: YES, because the answer is deemed to have not been legally filed. It was not in
accordance with the Rules of Court. (Gonzales vs. Francisco, 49 Phil. 47) So the defendant
must furnish the plaintiff a copy of the answer because in the case of

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RAMIREZ vs. COURT OF APPEALS

187 SCRA 153
HELD: The failure to furnish a copy of the answer to the adverse party in
itself is sufficient or valid basis for defendants default.
Q: May a defendant be declared in default while a motion to dismiss (Rule 16) or a
motion for bill of particulars (Rule 12) remains pending and undisposed of?
A: NO, because under the filing of a motion to dismiss or motion for bill of particulars
interrupts the running of the period to answer. It will run again from the moment he
receives the order denying his motion to dismiss or for bill of particulars. (Hernandez vs.
Clapis, 87 Phil. 437)
In the case of
DEL CASTILLO vs. AGUINALDO
212 SCRA 169 [1992]
FACTS: The defendant filed a motion to dismiss under Rule 16 but his motion
to dismiss did not contain notice of time and place of hearing and the motion
was denied. Can he file an answer after filing the motion to dismiss?
HELD: NO. He can be ordered in default. The motion is a useless piece of
paper with no legal effect.
Any motion that does not comply with Rule 16 should not be accepted for
filing and if filed, is not entitled to judicial cognizance and does not affect any
reglementary period. Not having complied with the rules, the motion to dismiss
filed by the defendant did not stay the running of the reglementary period to file
an answer.
GOLDEN COUNTRY FARM, INC. vs. SANVAR DEVT CORP.
214 SCRA 295 [1992]
FACTS: Because of the filing of the motion to dismiss is 15 days, the
defendant filed a motion to dismiss on the 8th day. It was denied. So there is still
7 days to file an answer. On the 15th day, instead of filing an answer, he filed a
motion for reconsideration and the such motion was denied. Then he filed an
answer.
HELD: NO MORE. The filing of the motion to dismiss interrupted the period to
file an answer. When you receive an order, you still have the balance to file your
answer. And you did not file an answer instead, you file a motion for
reconsideration. You took the risk. So defendants motion for reconsideration
which merely reiterated his ground in the motion to dismiss did not stay the
running of the period to file an answer.
(a) Effect of order of default. - A party in default shall be entitled to
notice of subsequent proceedings but not to take part in the trial. (2a, R18)

So if you are declared in default, you cannot take part in the trial. You lose your
standing, you cannot cross-examine the witness of the plaintiff assuming there is a
reception of evidence. You cannot object to his evidence. You cannot even present your
own evidence when you are in default.
But what is NEW here is that, you are entitled to notice of subsequent proceedings
which abrogates the old rule. Under the old rules, you are not entitled to service of notice,
orders, except substantially amended pleadings, supplemental pleadings, final orders or
judgments or when you file a motion to set aside an order of default.

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But NOW, wala na yan. You are now entitled to service of everything. You only lose you
standing in court but for the purpose of notice, you are entitled to service of every motion,
every pleading, every order.
HOW TO LIFT ORDER OF DEFAULT
(b) Relief from order of default. - A party declared in default may at any
time after notice thereof and before judgment file a motion under oath to set
aside the order of default upon proper showing that his failure to answer was
due to fraud, accident, mistake or excusable negligence and that he has a
meritorious defense. In such case, the order of default may be set aside on such
terms and conditions as the judge may impose in the interest of justice. (3a,
R18)

Q: What is the remedy of a defendant who has been declared in default?

A: One remedy under Section 3 paragraph [b] is that, provided there is still no default
judgment, he can still file a motion to set aside the order of default upon a proper showing
that his failure to answer was due to F.A.M.E. (Fraud, Accident, Mistake, or Excusable
negligence) and that he has a meritorious defense. [The discussions on FAME is in Rule 37
New Trial or Reconsideration]
Meaning, even if you are a victim of FAME, if you have no meritorious defense, the
court will not lift the order of default. You are wasting my time. Kahit na pagbigyan kita,
talo ka pa rin. There is no chance for you to win anyway. But if you have a meritorious
defense, there is no guarantee that you will win but at least you have a fighting chance ba
that your standing will be restored.
Upon proof, the court will set aside or lift the order of default and will give the
defendant an opportunity to answer, where he will plead his supposed meritorious
defenses. In effect, he regains his standing in court.
Q: When can the defendant avail of this remedy?
A: He may file a motion to set aside the order of default
thereof and before judgment.

at any time after notice

SUMMARY: Steps the defendant should take to set aside the order of default:
1.) File a motion to lift or set aside the order of default. The motion must be verified
and under oath;
2.) He must explain why he failed to file an answer due to FAME; and
3.) He must also show that he has a meritorious defense.
PARTIAL DEFAULT
(c) Effect of partial default. - When a pleading asserting a claim states a
common cause of action against several defending parties, some of whom answer
and the others fail to do so, the court shall try the case against all upon the
answers thus filed and render judgment upon the evidence presented. (4a, R18)

This presupposes that there are two or more defendants. Say, one or some of the
defendants made an answer and the others did not. So, one or some of the defendants
were declared in default, the others were not.
EXAMPLE: Gary sued Bentong and Bayani. Bentong filed an answer. Bayani did not.
Bayani was declared in default but there can be no judgment against Bayani in the
meantime because under paragraph [c], the case will go to trial based on the answer of
Bentong. The case will be tried against both Bentong and Bayani based on the answer of
Bentong.
The principle here is that, the answer filed by the answering defendant will
automatically benefit the non-answering defendant. The defense of Bentong will also be
Bayanis defense. Anyway there is a common or identical cause of action. The best
example would be a promissory note signed by both Bentong and Bayani and they bound

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themselves solidarily. Both of them were sued. Bentong answered while Bayani did not,
hence he is in default. Can there be a default judgment against Bayani? NO, there will still
be a trial based on the answer of Bentong. In effect, Bentong will defend not only himself
but also Bayani.
Q: Suppose during the trial, Bentong proved that the obligation has been extinguished,
which is also applicable to Bayani, and the complaint is dismissed, what is the effect?
A: Both Bentong and Bayani will win the case. So Bayani will be benefited by the
answer of his co-defendant Bentong. Hence, there is still a possibility that a defaulted
defendant can win based on our example.
On the other hand it is absurd if the answer of Bentong will not benefit the defaulting
defendant. EXAMPLE: Gary filed a case against Bentong and Bayani based on a promissory
note on a loan secured by both, and Bayani defaulted. Bentong answered alleging
payment. Suppose, Bentong proved such defense, the effect is both Bentong and Bayani
are absolved. If you say that Bayani should lose because the answer of Bentong will not
benefit Bayani, there will be two conflicting decisions: Bayani is in default and thus,
should pay the loan; and there is no more loan as far as Bentong is concerned. Do you
mean a loan is paid and at the same time unpaid? Thats absurd!
But take NOTE that to apply the principle, there must be a common cause of action. If
there is no cause of action, while there may be a trial, the answer of Bentong is only for
him. After the trial, Bentong might be absolved from liability but the defaulting defendant
Bayani will be held liable because Bentongs answer does not cover Bayani. That is when
there is no common cause of action. In the case of
CO vs. ACOSTA (134 SCRA 185 [1985])
reiterating the case of
LIM TANHU vs. RAMOLETE (66 SCRA 425)
FACTS: Bentong and Bayani were (solidary debtors) sued by Gary for a loan
evidenced by a promissory note. Bentong filed an answer but Bayani defaulted.
The case was tried based on Bentongs answer. Gary move to drop Bentong from
the case but retained Bayani, the defaulted defendant so that Gary can secure
an immediate judgement.
ISSUE: Is the motion of Gary proper?
HELD: NO. When there is a common cause against two or more defendants, if
you drop the case against one, you drop the case against all. Selection is not
allowed. To drop Bentong means that the cause of action against him is weak.
Why should one drop somebody if a case against such person is meritorious? If
such is the fact, necessarily the cause of action against the other is also weak
the fact there is actually a common cause of action.
However, the ruling in ACOSTA should not be confused with the ruling in
IMSON vs. COURT OF APPEALS [1996 BAR]
239 SCRA 58 [1994]
FACTS: Imson was driving a Toyota Corolla when he was bumped by a Hino
Truck causing injury to Imson and totally wreaking his car. So he filed an action
for damages against several defendants. He impleaded all of them the driver,
the bus company owner and the insurance company. The insurance company
filed an answer but the owner and the driver did not. So both the owner and the
driver were declared in default.
Subsequently, lmson and the insurance company entered into a compromise
agreement wherein the latter paid him P70,000 which was its total liability under
the insurance contract. The claim was very big so the insurance company
offered to give the amount, Bahala ka sa sobra.

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So when the case (between Imson and the insurance company) was
eventually dismissed because of the compromise agreement, the bus company
owner also moved to dismiss the case against him and the driver, arguing that
since they are all indispensable parties under a common cause of action, the
dismissal of the case against the insurance company should likewise result to the
dismissal of the case against them citing the case of ACOSTA and RAMOLETE.
ISSUE #1: Is there a common cause of action among the three of them?
HELD: The owner is wrong. There is NO common cause of action. The cause of
action against the driver is based on quasi-delict under Article 2178 of the Civil
Code. The liability against the owner is also based on quasi-delict but on another
provision of the Civil Code Article 2180 (the liability of the employer for the
delict or wrong of the employee) So, the liability of the owner and the driver is
based on quasi -delict but under separate provisions of the Civil Code.
Now, the cause of action against the insurance company is not based on
quasi-delict but based on contract because he seeks to recover liability from the
insurance company based on the third-party liability clause of the insurance
contract with the company.
So, there no common cause of action among them. Yaaann!
ISSUE #2: Is the insurance company an indispensable party? Because if it is
so and he is removed from the case, the case cannot proceed without him.
HELD: NO. The insurance company is not an indispensable party.
It is true that all of Imsons claims in civil case is premised on the wrong
committed by defendant truck driver. Concededly, the truck driver is an
indispensable party to the suit. The other defendants, however, cannot be
categorized as indispensable parties. They are merely necessary parties to the
case. It is easy to see that if any of them had been impleaded as defendant
(meaning, the insurance company or the owner were impleaded), the case would
still proceed without prejudicing the party not impleaded.
Thus, if petitioner did not sue the insurance company, the omission would
not cause the dismissal of the suit against the other defendants. Even without
the insurer, the trial court would not lose its competency to act completely and
validly on the damage suit. The insurer, clearly, is not an indispensable party. It
is a necessary party.
(d) Extent of relief to be awarded. - A judgment rendered against a party in
default shall not exceed the amount or be different in kind from that prayed for
nor award unliquidated damages. (5a, R18)

This is what we call LIMITATIONS on a default judgment:

1.) The default judgment should not exceed the amount prayed for in the complaint;
2.) The default judgment should not be different in kind from that prayed for in the
complaint;
3.) The default judgment should not award unliquidated damages.
Q: In the complaint, the claim is P300,000. The defendant defaulted. The court required
the plaintiff to present his evidence and during the trial, the latter proved P500,000 total
claim. Can the court award P500,000 claim as proved?
A: NO. It should only be P300,000 as prayed for in the complaint.
Q: Suppose during the trial, only P200,000 was proved. What should be the amount of
the default judgment?
A: Only P200,000 as proved because it did not exceed the amount prayed for in the
complaint.
Therefore, the rule is, the default judgement cannot exceed the amount prayed for in
the complaint although it may be less than it. Yaannn!
FUNDAMENTAL REASON ON THE RULE ON DEFAULT

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What is the reason behind this? You have to know the philosophy on default to
understand the reason behind paragraph [d]. Default means the defendant failed to file an
answer despite the fact that he was properly summoned.
Q: If a defendant failed to file an answer, what may be the reasons behind that? Why
did he not file an answer?
A: In the case of LIM TOCO vs. GO FAY, (80 Phil 166), there are two (2) possible reasons:
1.) Defendant deliberately did not answer because he believed that he had no good
defense, and that the claim is fair. And if he will make an answer, still he will not
win and would just incur expenses;
2.) He had a meritorious defense and he wanted to answer but for one reason or
another beyond his control, he failed to file his answer.
Q: In the second possibility the defendant had a defense and wanted to file an answer
but failed to file an answer, what is the remedy of such defendant?
A: It is paragraph [b] file a motion to lift the order of default and state the reasons
beyond ones control fraud, mistake, accident, or excusable negligence (FAME) and that
there is a meritorious defense.
Now suppose he did not answer because he thinks the claim is fair and so he will just
pay. Then, the contingency is paragraph [d] rest assured that the judgment will not
exceed the amount or be different in kind from that prayed for. At least, you will not be
surprised.
Just imagine, if you file a case against me for P200,000 damages and then I thought its
fair. So I allowed myself to be defaulted because anyway its only P200,000 because if I file
my answer, the costs could increase. And then during the trial, you proved that the
damages were in fact P2 million. So, when I received the judgment it was already P2
million when the complaint was only for P200,000. Now, if you knew that would be the
case, then you would have fought it out. In other words, its unfair. Hence, the reason.
Q: If the defendant filed an answer but failed to appear during trial, what will happen?
A: The case will proceed and there will be a presentation of evidence EX-PARTE.
Now if a person is declared in default, it is also possible that an Ex Parte presentation of
evidence will be ordered.
MANGELIN vs. COURT OF APPEALS
215 SCRA 230 [1992]
ISSUE: What is the difference between ex-parte presentation of evidence by
virtue of default judgment AND ex-parte presentation of evidence by failure to
appear during the trial
HELD: In reception of evidence due to DEFAULT ORDER, paragraph [d] applies
the judgment cannot exceed the amount or be different in kind from that
prayed for in the complaint.
BUT if theres an ex-parte reception of evidence against a defendant who
filed an answer but FAILED TO APPEAR during the trial, the limitations in
paragraph [d] does not apply. Therefore in this case, a greater amount than that
prayed for in the complaint, or a different nature of relief may be awarded so
long as the same are proved.
It may be pointed out that there is a difference between a judgment against
a defendant based on evidence presented ex-parte pursuant to a default order
and one based on evidence presented ex-parte and against a defendant who had
filed an answer but who failed to appear at the hearing. In the former, Section 3
[d] of Rule 9 provides that the judgment against the defendant should not
exceed the amount or be different in kind from that prayed for. In the latter,

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however, the award may exceed the amount or be different in kind from that
prayed for.
This is because when there is an ex parte presentation of evidence due to failure to
appear in trial, ones standing in court is not lost. HE can still present evidence later to
refute the plaintiffs evidence. He simply waived the rights attached on particular hearing
but not to all subsequent trials. In judgement by default, he actually loses his standing in
court.
They added new (third) limitation Unliquidated damages cannot be awarded in
default judgment. Obviously liquidated ones can be.
Q: What is the difference between UNLIQUIDATED damages and LIQUIDATED damages?
A: UNLIQUIDATED DAMAGES are those which are still subject to evidence before it can
properly be awarded such as the presentation of receipts in terms of actual damages, or
taking of testimonies to determine mental anguish or besmirched reputation in cases of
moral damages.
LIQUIDATED DAMAGES are those which are already fixed and proof or evidence to
establish the same are not required. An example is an obligation with a penal clause like
an agreement to construct a house and upon failure to finish the same within a stipulated
period, the contractor is liable for P10,000 for every day of delay. The amount is already
fixed based on the contract price and the penalty provided and such other circumstances
as stipulated.
Now, this third limitation is one of the provisions that I criticized. It should not be here.
Something is wrong here. Last September 1997 during the BAR exams, the secretary of
the committee which drafted this, the former clerk of court of the SC, Daniel Martinez
asked for comments on the New (1997) Rules. I told him about the new Rules on Default,
asking him who placed the provision there. He said it was Justice Ferias idea.
J. Feria said, Kawawa naman kasi yung tao, na-default na titirahin mo pa ng unliquidated damages. But I said that there is something wrong here. For EXAMPLE: You filed a
case against me na puro damages compensatory , moral , etc. and I believe I will lose
the case if I go to trial. So, my strategy now would to have myself declared in default
because anyway, those unliquidated damages cannot be awarded by default.
In other words, they have placed the defaulted defendant in a better position when he
will file an answer because if he files an answer and goes to trial, he might lose. So, if he
allows himself to be defaulted, the court can never award the damages. This is the effect
of the new limitation. That is why Im against this change here.
So, in an action for damages, I will never answer para pag ma-default ako, the court
can never award those damages. Because if I will answer, eh baka ma-award pa. In other
words, I will win the case simply because there is no way for the court to award the
damages. And most damages are usually those unliquidated damages.
(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. (6a, R18)

This refers to marital relations referred to in the Family Code: Annulment of marriage;
Declaration of nullity of marriage; Legal Separation. And the policy of the State is to
preserve the marriage and not encourage break-ups.
Now, in the absence of this provision, husband and wife quarrels and then they decide
to separate. Wife will file a case for legal separation with the agreement that the husband
will not answer. Being in default, there will be a judgement in default and in a months
time marriage will be severed for the meantime. The provision then prohibits default in
marital relations cases to preserve and uphold public policy.

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Q: What if the party did not really file an answer?

A: The court is bound to find out whether there is a collusion between the parties
whether the act is deliberate without agreement. We already know that there should be
presentation of evidence. And the law requires the State to intervene. The fiscal is
responsible to see to it that the evidence is not fabricated, the same is legitimate.
Relate this provision of the rule to Articles 48 and 60 of the Family Code:
Family Code, Art. 48. In all cases of annulment or declaration of absolute
nullity of marriage, the court shall order the prosecuting attorney or fiscal
assigned to it to appear on behalf of the State to take steps to prevent
collusion between the parties and to take care that the evidence is not
fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be
based upon a stipulation of facts or confession of judgment.
Family Code, Art. 60. No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment.
In any case, the court shall order the prosecuting attorney or fiscal
assigned to it to take steps to prevent collusion between the parties and to
take care that the evidence is not fabricated or suppressed.

published by

LAKAS ATENISTA 1997 1998: FOURTH YEAR: Anna Vanessa Angeles Glenda Buhion Joseph
Martin Castillo Aaron Philip Cruz Pearly Joan Jayagan Anderson Lo
Yogie Martirizar Frecelyn Mejia Dorothy Montejo Rowena Panales Regina Sison
Ruby Teleron Marilou Timbol Maceste Uy Perla Vicencio Liberty Wong Jude Zamora
Special Thanks to: Marissa Corrales and July Romena
SECOND YEAR: Jonalyn Adiong Emily Alio Karen Allones Joseph Apao
Melody Penelope Batu Gemma Betonio Rocky Cabarroguis Charina Cabrera
Marlon Cascuejo Mike Castaos Karen de Leon Cherry Frondozo Jude Fuentes Maila Ilao
Ilai Llena Rocky Malaki Jenny Namoc Ines Papaya Jennifer Ramos Paisal Tanjili

LAKAS ATENISTA 20012002: REVISION COMMITTEE: Melissa Suarez Jessamyn Agustin

Judee Uy Janice Joanne Torres Genie Salvania Pches Fernandez Riezl Locsin
Kenneth Lim Charles Concon Roy Acelar Francis Ampig Karen Cacabelos
Maying Dadula Hannah Examen Thea Guadalope Myra Montecalvo Paul Ongkingco
Michael Pito Rod Quiachon Maya Quitain Rina Sacdalan Lyle Santos Joshua Tan
Thaddeus Tuburan John Vera Cruz Mortmort

Property of LAKAS ATENISTA

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