Pending marriage nullity case, habeas corpus petition, motion to dismiss proper?

Ms. Kimy De Leon asked, "Mr. Dayan files a petition for declaration of nullity of marriage before the RTC of Muntinlupa City. His wife, Mrs. Dilemma files a petition for habeas corpus before the RTC of Caloocan City, praying for custody over their minor child. Mr. Dayan files a motion to dismiss the petition filed by Mrs. Dilemma on the reason of the pendency of the case for declation of nullity of marriage. Rule."

SUGGESTED ANSWER: The motion to dismiss should be denied.

Under Rule 16 of the Rules of Court, an action may be dismissed on the ground of the existence of a pending action between same parties and regarding the same issues. This is called "litis pendentia."

In the case at bar, the two actions deal with different issues. The petition to declare the nullity of marriage deals with the validity of marriage while the habeas corpus petition deals with custody the parties' minor child. Although the first petition, if successful, will eventually result in an order designating custody to either or both of the spouses, the ultimate objective differs between it and the second petition. Hence, the motion to dismiss should be denied.

IMPORTANT NOTE: Nevertheless, Article 49 of the Family Code provides, "During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent." Hence, issues on custody may be resolved by the court in the petition to declare marriage null and void even without habeas corpus proceedings. (Note provided by Victor Austria.)