You are on page 1of 5

9. Legal Separation (4) Final judgment sentencing the respondent to especially so because of the 3rd paragraph of Art.

17 of the
Concept; A Vinculo Matrimonii and A Mensa Et Thoro; imprisonment of more than six years, even if pardoned; Civil Code; and
Legal Separation distinguish from Separation de facto and (5) Drug addiction or habitual alcoholism of the respondent; (h) to give preference to a second (but illegal) marriage
Separation of Property (6) Lesbianism or homosexuality of the respondent; simply because it appears to be more solid and blessed
Two Kinds of Divorces (7) Contracting by the respondent of a subsequent with children will do away with the concept of marriage as a
(a) Absolute divorce (divorce a vinculo matrimonii) — bigamous marriage, whether in the Philippines or abroad; social institution.
Marriage is dissolved. (8) Sexual infi delity or perversion;
[NOTE: Under Act 2710, there were two grounds.] (9) Attempt by the respondent against the life of the Effect of the Institution of a Criminal Action
(b) Relative divorce or LEGAL SEPARATION (divorce a mensa petitioner; or If a wife sues for legal separation on the ground of
et thoro) — Marriage is NOT dissolved; here, the parties are (10) Abandonment of petitioner by respondent without concubinage, and during the pendency of said suit, she fi
merely separated from bed and board. justifiable cause for more than one year. For purposes of les a criminal charge for concubinage, the civil action
[NOTE: Under the Civil Code, there are three (3) grounds. this Article, the term “child” shall include should be SUSPENDED until after fi nal judgment is
Under the Family Code, there are ten (10) grounds.] a child by nature or by adoption. (97a) rendered in the criminal
case (Sec. 3[b], Rule 111, Revised Rules of Court)
Legal Separation Increase in the Number of Grounds inasmuch as her cause of action in the case for legal
(a) Must be done thru the court. While in the Civil Code, there were only three grounds for separation arises from the very crime of concubinage
[NOTE: An extrajudicial agreement to separate is VOID. legal separation, there are ten grounds enumerated in the charged in the criminal case. (Jerusalem v. Zurbano, et al.,
(Art. 221, No. 1, Civil Code).]. Family Code. L-11935, Apr. 24, 1959).
(b) Always involves also separation of property. This is a question of decision since the offense now need
(c) May be considered, in a sense, as a cause of separation Proof Needed not be proved in a criminal case.
of property. Mere preponderance of evidence, not guilt beyond
(d) The spouse persons are necessarily separated. reasonable doubt, will suffice to prove the existence of any Duty of Court to Try to Effect a Reconciliation
of the grounds, although in ground No. 4, previous criminal In every case, the court must take steps, before granting
Separation of Property conviction is essential (this is a separate case) in view of the legal separation, toward the reconciliation of the
(a) 1) If one prior to marriage — may be done thru the the necessity of a “final judgment.” spouses, and must be fully satisfied that such reconciliation
marriage settlement. is highly improbable. (Art. 98). It is the policy of the law to
2) If done during the existence of the marriage — must be Pastor B. Tenchavez v. Vicenta F. Escaño L-19671, Nov. discourage
done thru the courts. 29, 1965 legal separation (Juarez v. Turon, 51 Phil. 736) because
(b) May exist with or without legal separations. (a) a foreign divorce between Filipino citizens sought and the family is a basic social institution which public policy
(c) May be considered, in a sense as one of the effects of decreed after the effectivity of the new Civil Code is not cherishes and protects. (Art. 216).
legal separation (Art. 63, Family Code). (Of course, entitled to recognition (as valid) in our country;
separation of property may exist without a legal separation.) (b) neither is the marriage contracted with another party by The Action Is Personal in Nature
(d) The spouses persons are NOT necessarily separated. the “divorced’’ consort, subsequent to the foreign decree of Lapuz-Sy v. Eufemio 43 SCRA 177
divorce, entitled to validity in this jurisdiction; An action for legal separation which involves nothing more
a. Grounds, Art. 55 (1) to (10), Art. 101 and 128, FC; Art. (c) the remarriage of the “divorced” wife and her than bed-and-board separation of the spouses is purely
247, 333 and 334, Revised Penal Code cohabitation with her new “husband” entitles her lawful personal. Being personal in character, it follows that the
Art. 55. A petition for legal separation may be fi led on any husband to a decree of legal separation; death of one party to the action causes the death of the
of the following grounds: (d) the desertion by one consort entitles the other to action itself — actio personalia meritus cum persona.
(1) Repeated physical violence or grossly abusive conduct recover moral damages;
directed against the petitioner, a common child, or a child of (e) an action for alienation of affections against the parents Conviction Is Not Necessary Before Legal Separation May
the petitioner; of one consort will not prosper in the absence of proof of Prosper
(2) Physical violence or moral pressure to compel the malice and unworthy motives on the part of said parents; A decree of legal separation, on the ground of concubinage
petitioner to change religious or political affi liation; (f) the original marriage subsists despite the foreign (a form of sexual infi delity under Art. 55, no. 8 of the Family
(3) Attempt of respondent to corrupt or induce the divorce; Code) may issue upon proof by preponderance of evidence
petitioner, a common child, or a child of the petitioner, to (g) to grant effectivity to foreign divorces would be a patent in an action (for legal separation). Thus, no criminal
engage in prostitution, or connivance in such corruption or violation of the declared public policy of the State, proceedings or conviction is necessary. (Gaudionco v. Hon.
inducement; Peñaranda, L72984, Nov. 27, 1987).
act does not necessarily imply condonation of the others. HELD: No, he is not guilty in view of the consent of the wife.
Ong Eng Kiam v. Ong, G.R. No. 15320, October 23, 2006 (People v. Zapata and Bondoc, L-3047, May 16, 1951). (1) We do not legalize the agreement; the agreement is still
Gaudionco v. Penaranda, G.R. No. 79284, 27 November (e) Where the wife left the conjugal home after her null and void because it is contrary to the law
1987 adulterous acts were discovered, the fact that the husband and contrary to morals. BUT precisely because the girl had
Prima Partosa-Jo v. Court of Appeals, G.R. No. 82606, did not actively search for her is not condonation. It was not previously consented, she is now undeserving of our
December 18, 1992 the duty of the husband to search for the wife under the sympathy. She deserves less consideration than a woman
circumstances. On the contrary, hers was the duty to return who condones.
Art. 56. The petition for legal separation shall be denied on to the conjugal home. (De Ocampo v. Florenciano, L- (2) It is alleged that when the law speaks of consent, what it
any of the following grounds: 13553, Feb. 23, 1960). meant is condonation. This is not so; otherwise, why is
(1) Where the aggrieved party has condoned the offense or consent used as the alternative of condo-nation?
act complained of; Forms Consent is prior to the act; condonation comes after. (See
(2) Where the aggrieved party has consented to the Arroyo v. Court of Appeals, G.R. No. 96602, November 19, also Matubis v. Praxedes, L-11766, Oct. 25, 1960).
commission of the offense or act complained of; 1991
(3) Where there is connivance between the parties in the Ginez v. Bugayong, G.R. No. L-10033, December 28, 1956 People v. Sensano, G.R. No. 37720, March 7, 1933 (En
commission of the offense or act constituting the ground for (En Banc) Banc)
legal separation; People v. Zapata, G.R. No. L-3047, May 16, 1951 (En People v. Sansano and Ramos 59 Phil. 73
(4) Where both parties have given ground for legal Banc) FACTS: A and B, husband and wife, respectively, were
separation; De Ocampo v. Florenciano, G.R. No. L-13553, February legally married. Later, B abandoned A. B lived with C. A did
(5) Where there is collusion between the parties to obtain 23, 1960 (En Banc) nothing to interfere with the relations of his wife and her
the decree of legal separation; or paramour. He even went to Hawaii, completely abandoning
(6) Where the action is barred by prescription. (100a) ii. Consent, Art. 56, par. 2, FC his wife B for more than seven years. Later, A returned and
Distinguished from Condonation; Forms charged B and C with adultery. Is B guilty of adultery?
b. Defenses, Art. 56, FC Consent HELD: B should be acquitted because A’s conduct
Defenses in Legal Separation (a) This may be express or implied. warranted the inference that in truth, as well as in fact, he
(a) Condonation (b) Consent must be distinguished from entrapment. had consented to the philandering of his wife.
(b) Consent Therefore, if the purpose is to merely catch the wife, this is
(c) Connivance not consent even if the husband deliberately went away
(d) Mutual guilt (recrimination) only to come back and trap the wife. iii. Connivance, Art. 56, par. 3, FC
(e) Collusion (c) Of course, if a husband hires a detective to spy on his Distinguished from Entrapment
(f) Prescription wife, and tells him to have sexual intercourse with her in
i. Condonation/Pardon, Art. 56, par. 1, FC order to have evidence, this will be a case of connivance. iv. Recrimination/Mutual Guilt, Art. 56, par. 4, FC
Condonation The husband here is unworthy. (See Keezer, Marriage and Rationale
(a) This means forgiveness, express or implied. Sleeping Divorce, pp. 550-551). Mutual Guilt
together after full knowledge of the offense is condonation. Both parties being in pari delicto, there is no offended
(Bugayong v. Ginez, L-10033, Dec. 28, 1956). Matubis v. Praxedes, G.R. No. L-11766, October 25, 1960 spouse who deserves to bring the action. This is true even
(b) It comes AFTER, not before, the offense. (People v. People v. Schneckenburger, G.R. No. 48183, November if one of the parties has been pardoned but the other has
Schneckenburger, 73 Phil. 413). 10, 1941(En Banc) not. (Benedicto v. De la Rama, 3 Phil. 34). If there is no pari
(c) Implied condonation may come in the form of voluntary People v. Schneckenburger 73 Phil. 413 delicto as when the husband can prove he did not allow the
sexual intercourse after knowledge of the cause (Johnston (This reverses the contrary rule in People v. Guinocud and wife to desecrate the home, the adulterous wife can be
v. Johnston, 116 Va. 778; Keezer, Marriage and Divorce, p. Tagayun, 58 Phil. 621). charged for adultery. Incidentally, while consent comes
554), unless the reason was to save the marital relationship FACTS: A husband and a wife entered into a mutual BEFORE the act, and condonation comes AFTER, to make
and maintain harmony (Keezer, Marriage and Divorce, p. agreement whereby each could live with others, have use of either, the same must be BEFORE the fi ling of the
557) or for the purpose of attempting (unsuccessfully) a carnal knowledge of them, without interference from the complaint. (Arroyo v. Court of Appeals, 203 SCRA 150
reconciliation. (Hawkins v. Hawkins, 286, Pac. other. Pursuant to the agreement, the husband lived with [1991]).
747). another woman, and in the prosecution for concubinage, he
(d) Each sexual intercourse of the wife outside marriage is presented in defense the prior agreement or consent. Is he Benedicto v. De La Rama, G.R. No. 1056, December 8,
a separate act of adultery. Therefore, condonation of one guilty? 1903
Lapuz Sy v. Eufemio, G.R. No. L-30977, January 31, 1972 Art. 59. No legal separation may be decreed unless the
v. Collusion, Art. 56, par. 5 and Art. 60, par. 2, FC (En Banc) court has taken steps toward the reconciliation of the
How committed spouses and is fully satisfi ed, despite such efforts, that
Collusion iv. Mandatory Cooling-Off Period, Art. 58, FC reconciliation is highly improbable. (n)
This is an agreement whereby one will pretend to have Art. 58. An action for legal separation shall in no case be
committed the ground relied upon. (Keezer, Marriage and tried before six months shall have elapsed since the fi ling Steps to First Be Taken By the Court
Divorce, p. 546). A legal separation obtained thru collusion of the petition. (103a) The Court must have fi rst taken steps toward the
is void. (See Art. 221, No. 3, Civil Code). Rationale reconciliation of the spouses and be fully satisfied, despite
Cooling-Off Period such efforts, that reconciliation is highly improbable, before
De Ocampo v. Florenciano, G.R. No. L-13553, February Purpose of the six months period before trial is to enable any legal separation may be decreed.
23, 1960 (En Banc) the parties to cool off (Pacete, et al. v. Hon. G. Carriaga,
Jr., et al., 49 SCAD 673, GR 53880, Mar. 17, 1994) for a vi. Necessity of Trial and Intervention of State, Art. 60, FC
vi. Prescription, Art. 56, par. 6 and Art. 57, FC possible reconciliation. (Araneta v. Concepcion and Benitez Art. 60. No decree of legal separation shall be based upon
Art 56. Effect of Death During Pendency: If one party dies Araneta, L-9667, July 31, 1956). stipulation of facts or a confession of judgment. In any
during the pendency of the case, the same should be case, the court shall order the prosecuting attorney
DISMISSED since the action is purely a personal one. This Enrico L. Pacete v. Hon. Glicerio V. Carriaga, Jr. GR or fi scal assigned to it to take steps to prevent collusion
is true even if there would have been effects on property 53880, Mar. 17, 1994 between the parties and to take care that the evidence is
rights if a decree of legal separation had been granted. 49 SCAD 673 not fabricated or suppressed. (101a)
Without the decree, there can be no effects. (Lapuz v. The special proscriptions on actions that can put the
Eufemio, 43 SCRA 179). integrity of marriage to possible jeopardy are compelled by (1) Legal Separation Based on Stipulation of Facts or
no less than the State’s interest in the marriage relation and Confession of Judgment
Art. 57. An action for legal separation shall be fi led within fi its avowed intention not to leave the matter within the (a) The law requires proof, not a mere stipulation of facts or
ve years from the time of the occurrence of the cause. exclusive domain and the vagaries of the parties to alone a confession of judgment. Indeed, there ought to be a trial.
(102a) dictate. (Incidentally, Rule 19 of the Revised Rules of Court also
prohibits a judgment on the pleadings in actions for legal
Non-necessity of Alleging Prescription No Suspension for Support Pendente Lite But the cooling- separation or annulment of a marriage.)
Although prescription should ordinarily be alleged, this is off period does not mean the overruling of such other (b) The proof may be either direct or circumstantial
not so in legal separation or annulment proceedings. provisions as custody, alimony, and support pendente lite evidence.
Therefore, the court even by itself can take cognizance of according to the circumstances. (Art. 105, Civil Code). (c) Note that the case may prosper even if the defendant
prescription of the case because said action involves public Therefore, even during said period of six months, support does not appear.
interest, and it is the policy of our law that no such decree pendente lite may be granted if justifi ed; otherwise rank
be issued if any legal obstacles thereto appear upon the injustice may be caused. (Araneta v. Concepcion and May the court issue a decree of legal separation based
record. (Brown v. Yambao, L-10699, Oct. 18, 1957). Benitez upon facts stipulated by the spouses? If so, why? If not,
Araneta, L-9667, July 31, 1956, 52 O.G. 5165). Similarly, a why not? ANSWER: No, if the decree is based solely on the
Brown v. Yambao, G.R. No. L-10699, October 18, 1957 writ of preliminary mandatory injunction for the return of the stipulation of facts. (Art. 101, Civil Code). Yes, if there be
(102 Phil 168) wife’s paraphernal property can in the meantime be heard other evidence of the existence of a ground for legal
De Ocampo v. Florenciano, G.R. No. L-13553, February and granted during the 6-month period. (Semosa-Ramos v. separation. (Ocampo v. Florenciano, L-13553, Feb. 23,
23, 1960 (En Banc) Vamenta, 46 SCRA 110). 1960).
Contreras v. Macaraig, G.R. No. L-29138, May 29, 1970 N.B.: Art. 60 has been culled from Art. 101 of the Civil Code
and which in turn has been taken from Art. 30 of the
c. Action for Legal Separation; A.M. No. 02-11-11-SC Araneta v. Concepcion, G.R. No. L-9667, July 31, 1956 (En California Civil Code. (Pacete v. Carriaga, GR 53880, 49
i. Prescriptive Period Banc), 99 Phil 709 SCAD 673, Mar. 17, 1994).
ii. Parties – who can file Somosa-Ramos v. Vamenta, Jr., G.R. No. L-34132 July 29,
iii. Procedure 1972 (En Banc) Pacete v. Carriaga, G.R. No. L-53880, March 17, 1994
Pacete v. Carriaga, G.R. No. L-53880, March 17, 1994 49 SCAD 673
Bañez v. Bañez, G.R. No. 132592, January 23, 2002 Art. 101 of the Civil Code (now Art. 60, Family Code)
v. Duty of the Court to Effect Reconciliation, Art. 59, FC reflects the public policy on marriages. It should easily
explain the mandatory tenor of the law. The special Espiritu and Layug v. Court of Appeals, G.R. No. 115640, The dissolution and liquidation of the conjugal partnership
proscriptions on actions that can put the integrity of March 15, 1995 upon issuance of the decree of legal separation SHALL BE
marriage to possible jeopardy are impelled by no less than Lapuz Sy v. Eufemio, G.R. No. L-30977, January 31, 1972 AUTOMATIC.
the State’s interest in the marriage relation and its (En Banc)
avowed intention not to leave the matter within the Art. 64. After the finality of the decree of legal separation,
exclusive domain and the vagaries of the parties to alone viii. Decree of Legal Separation, Arts. 63-64 to Art. 43 and the innocent spouse may revoke the donations made by
dictate. 213, FC him or by her in favor of the offending spouse, as well as
Art. 63. The decree of legal separation shall have the the designation of the latter as a beneficiary in any
vii. Legal Separation Pendente Lite, Art. 61-62 and Art. 49, following effects: insurance policy, even if such designation be stipulated as
FC (1) The spouses shall be entitled to live separately from irrevocable. The revocation of the donations shall be
Art. 61. After the fi ling of the petition for legal separation, each other, but the marriage bonds shall not be severed; recorded in the registries of property in the places where
the spouses shall be entitled to live separately from each (2) The absolute community or the conjugal partnership the properties are located. Alienations, liens and
other. The court, in the absence of a written agreement shall be dissolved and liquidated but the offending spouse encumbrances registered in good faith before the recording
between the spouses, shall designate either of them or a shall have no right to any share of the net profits earned by of the complaint for revocation in the registries of property
third person to administer the absolute community or the absolute community or the conjugal partnership, which shall be respected. The
conjugal partnership property. The administrator appointed shall be forfeited in accordance with the provisions of revocation of or change in the designation of the insurance
by the court shall have the same powers and duties as Article 43(2); beneficiary shall take effect upon written notification thereof
those of a guardian under the Rules of Court. (104a) (3) The custody of the minor children shall be awarded to to the insured.
the innocent spouse, subject to the provisions of Article 213 The action to revoke the donation under this Article must be
(1) Note that the spouses can live separately after the fi of this Code; and brought within fi ve years from the time the decree of legal
ling of the petition for legal separation. But they are not (4) The offending spouse shall be disqualifi ed from separation has become fi nal. (107a)
required to do so. inheriting from the innocent spouse by intestate
(2) A third person may manage the property regime. The succession. Moreover, provisions in favor of the offending Two Things that May Be Revoked by the Innocent Spouse
designation of this person may be done by the court. spouse made in the will of the innocent spouse shall be (a) Donations made in favor of the offending spouse.
revoked by operation of law. (106a) (b) Designation of the offending spouse as benefi ciary in
Art. 62. During the pendency of the action for legal the insurance contracts of the innocent spouse.
separation, the provisions of Article 49 shall likewise apply Scope
to the support of the spouses and the custody and support This Article applies regarding some effects after the grant of Laperal v. Republic, G.R. No. L-18008, October 30, 1962
of the common children. (105a) a decree of legal separation. (En Banc)
Siochi v. Gozon, G.R. No. 169900, March 18, 2010
(1) Note that as in the annulment or declaration of the Continued Existence of the Marriage
nullity of a marriage, Art. 49 shall likewise apply to support (a) Neither party can have a paramour. ix. Reconciliation, Art. 65-67, FC
and custody. (b) The married couple cannot insist on sexual intercourse Procedure
(2) Art. 49 provides: “During the pendency of the action and with each other. Art. 65. If the spouses should reconcile, the corresponding
in the absence of adequate provisions in a written (c) Even if the wife be the one guilty, she may continue joint manifestation under oath duly signed by them shall be
agreement between the spouses, the court shall provide for using her maiden name. fi led with the court in the same proceeding for legal
the support of the spouses and the custody and support of separation. (n)
their common children. The court shall give paramount Custody of the Minor Children The custody is generally This Article requires a joint manifestation under oath in
consideration to the moral and given to the innocent spouse. case of reconciliation.
material welfare of said children and their choice of the
parent with whom they wish to remain as provided for in Disqualification from Testate and Intestate Succession Art. 66. The reconciliation referred to in the preceding
Title IX. It shall also provide for appropriate visitation rights Generally, the guilty spouse cannot inherit from the Article shall have the following consequences:
of the other parent.’’ innocent spouse. (1) The legal separation proceedings, if still pending, shall
thereby be terminated in whatever stage; and
Sabalones v. Court of Appeals, G.R. No. 106169, February Laperal v. Republic L-18008, Oct. 30, 1962 (2) The fi nal decree of legal separation shall be set aside,
14, 1994 but the separation of property and any forfeiture of the
share of the guilty spouse already effected shall subsist,
unless the spouses agree to revive their former property
regime. The court order containing the foregoing shall be
recorded in the proper civil registries. (108a)

(1) Generally, forfeiture of the share of the guilty spouse


remains — if there should be a reconciliation.
(2) Exception — when the parties agree to revive the former
property regime.

Art. 67. The agreement to revive the former property regime


referred to in the preceding Article shall be executed under
oath and shall specify:
(1) The properties to be contributed anew to the restored
regime;
(2) Those to be retained as separated properties of each
spouse; and
(3) The names of all their known creditors, their addresses
and the amounts owing to each.
The agreement of revival and the motion for its approval
shall be fi led with the court in the same proceeding for
legal separation, with copies of both furnished to the
creditors named therein. After due hearing, the court shall,
in its order, take measures to protect the interest of
creditors and such order shall be recorded in the proper
registries of properties.
The recording of the order in the registries of property shall
not prejudice any creditor not listed or not notified, unless
the debtor-spouse has sufficient separate properties to
satisfy the creditor’s claim. (195a, 108a)

Effects of Reconciliation on:


1) personal relations
2) pending case
3) judgment prior to the issuance of the final decree
4) final decree of legal separation
5) property relations

x. Registration requirements