What is a Separation Agreement?

A separation agreement is a written contract between two spouses who are married but want to
live apart. The agreement outlines the couple’s practical concerns about how their property,
assets, debts, and bills should be handled while they are separated.

If children are involved, a separation agreement helps clarify details about who should have
custody, how frequently the other parent can visit, and whether child support is required.
Similarly, if one spouse puts their career on pause to raise children, the separation agreement
could address whether one person should receive spousal support or alimony.

A separation agreement will identify the following basic elements:

 Parties: list the name of the two spouses who are married but want to live apart

 Date of Marriage: when the couple was originally lawfully married

 Residency Requirement: confirm that the couple has lived in the state and particular
county for the required amount of time to establish residency for legal purposes

 Temporary or Permanent: decide whether the separation agreement will continue to be

valid if the parties follow through with a annulment (permanent) or whether a new agreement
will be created

 Children: if minor children under the age of 18 years old are involved, discuss who has
custody, how much child support will be provided, and how often can the other parent visit

 Assets: who will stay in the marital home and how will shared property like cars and
furniture be divided

 Debts: how will taxes, mortgages, loans, or bills be handled while living apart

 Spousal Support: ask yourselves whether one person should receive financial support
given their occupation, age, and health

 Notarized Signatures: in order for the agreement to be legally enforceable, both spouses
MUST sign the agreement in the presence of a notary public, not necessarily at the same time or
with the same notary
 Note: All conditions must be mutually agreed by both spouses in order to be binding and
enforceable.

ACTION FOR LEGAL SEPARATION

What is LEGAL SEPARATION?

 Legal separation is a legal remedy available to parties in a valid but failed marriage for the purpose of
obtaining a decree from the court entitling him or her certain reliefs such as the right to live separately
from each other (without affecting the marital bond that exists between them), the dissolution and
liquidation of their absolute community or conjugal partnership property regime and the custody of their
minor children.

Nature of legal separation

An action for legal separation which involves nothing more than bed-and-board separation of the spouses
is purely personal.

Who may Apply?

The Civil Code recognizes this by:

1. By allowing only the innocent spouse and no one else to claim legal separation;

2. By providing that the spouses can, by their reconciliation, stop or abate the proceedings and even
rescind a decree of legalese parathion already granted (Lapuz v. Eufemio, G.R. No. L-31429, January 31,
1972).

What are the grounds for legal separation?

Legal separation can be granted when there are serious marital problems. Under the law, the
grounds for legal separation are:

(a) Repeated physical violence or grossly abusive conduct directed against the petitioner,
a common child, or a child of the petitioner;

(b) Physical violence or moral pressure to compel the petitioner to change religious or

political affiliation;

(c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child

of the petitioner, to engage in prostitution, or connivance in such corruption or
inducement;

(d) Final judgment sentencing the respondent to imprisonment of more than six years,
even if pardoned;

(e) Drug addiction or habitual alcoholism of the respondent;

(f) Lesbianism or homosexuality of the respondent;

(g) Contracting by the respondent of a subsequent bigamous marriage, whether in or

outside the Philippines;

(h) Sexual infidelity or perversion of the respondent;

 (i) Attempt on the life of petitioner by the respondent; or

(j) Abandonment of petitioner by respondent without justifiable cause for more than one
year.

(k) Habitual alcoholism is a ground for legal separation.

Prescriptive period for filing a petition for legal separation

An action for legal separation shall be filed within five years from the time of the occurrence of
the cause (FC, Art. 57)

What are the effects of legal separation?

1. Spouses entitled to live separately but the marriage bond is not severed;

2. Absolute Community property (ACP) / Conjugal Partnership of Gains (CPG) shall be dissolved
and liquidated.

3. The share of the offending spouse in the net profits shall be forfeited in favour of:

a. Common children,

b. In default of the common children, children of the guilty spouse by a previous marriage,

c. In default of common children and the children of the guilty spouse, innocent spouse;

4. Custody of minor children is awarded to the innocent spouse(subject to FC, Art. 213);

5. Offending spouse is disqualified to inherit from innocent spouse by intestate succession;

6. Provisions in the will of innocent spouse which favors offending spouse shall be revoked by
operation of law;

7. Innocent spouse may revoke donations he/she made in favor of offending spouse;
And NOTE: Prescriptive period: 5 years from finality of decree of legal separation

8. Innocent spouse may revoke designation of offending spouse as beneficiary in any insurance
policy, even when stipulated as irrevocable

Subject to court discretion on the best interests of the child, the custody of the minor children
will be awarded to the innocent spouse.
The spouse at fault becomes disqualified from inheriting from the innocent spouse whether with
or without a last will and testament.

Can a petition for legal separation be denied?

Yes. The following are the grounds for denying such a petition:

(1) Where the aggrieved party has condoned the offense or act complained of;

(2) Where the aggrieved party has consented to the commission of the offense or act
complained of;

(3) Where there is connivance between the parties in the commission of the offense or act
constituting the ground for legal separation;

(4) Where both parties have given ground for legal separation;

(5) Where there is collusion between the parties to obtain a decree of legal separation; or

(6) Where the action is barred by prescription.

Note ground (1) in particular. Condonation (forgiveness) may be either express or implied.

Under Philippine law and jurisprudence, there is already implied condonation when, after a
ground for legal separation becomes known, the couple resumes cohabitation as man and wife.

This means that even if there were valid grounds for legal separation, if the spouses have sexual
intercourse after the grounds became known then legal separation will not be allowed by the
court. “The legal separation may be claimed only by the innocent spouse, provided there has
been no condonation of or consent to the adultery or concubinage. Where both spouses are
offenders, legal separation cannot be claimed by either of them. Collusion between the parties to
obtain legal separation shall cause the dismissal of the petition.

As the husband resumed relations with the wife, condonation occured.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that “condonation is
implied from sexual intercourse after knowledge of the other infidelity. Such acts necessary
implied forgiveness. It is entirely consonant with reason and justice that if the wife freely
consents to sexual intercourse after she has full knowledge of the husband’s guilt, her consent
should operate as a pardon of his wrong.”

Consider also ground (4) for denying a petition for legal separation, “Where both parties have
given ground for legal separation.” Consider what it means in practice.

He who comes to court must come with “Clean hands” means that one spouse must have no
fault.
 The law demands that a spouse who seeks legal separation should come to court with
“clean hands”.

COOLING-OFF PERIOD

An action for legal separation shall be in no case tried before 6 months has elapsed since the
filing of the petition, to enable the contending spouses to settle differences. In other words, it is for
possible reconciliation (FC, Art. 58).

General Rule: The 6 months cooling-off period is a mandatory requirement. Petition shall not be granted
if it is not observed (Pacete v. Carriaga, G.R. No. L-53880, March 17, 1994).

Note: Matters other than the merits of legal separation can be determined by the court without waiting
for the lapse of the 6-month period.

Exception: There is no cooling-off period if the grounds alleged are those under R.A. 9262 (Anti-
Violence against Women and Children Act). The court can immediately hear the case.

EFFECTS OF RECONCILIATION

As to the Decree:

During the pendency of the case: Legal Separation proceedings terminated at whatever stage

After the issuance of the decree: Final decree of Legal Separation to be set aside (FC, Art. 66).

As to the Property Regime:

General Rule: In case there had been already separation of property and forfeiture of the share of the
guilty spouse, the same shall be maintained (Pineda, 2008).

Exception: The parties, however, can come into an agreement to revive their previous regime. Their
agreement must be under oath and must contain a list of the properties desired to be returned to the
community or conjugal property and those which will remain separate, a list of creditors and their
addresses.

As to capacity to succeed:

The Family Code does not provide for the revival of revoked provisions in a will originally made
in favor of the offending party as a result of the Legal Separation. This absence gives the innocent spouse
the right to choose whether the offending spouse will be reinstituted.

As to the forfeited shares:

 Those given to the children cannot be returned since the spouses are no longer the owners of
such. But those given to the innocent spouse may be returned.

Revival of previous property regime after reconciliation

Reconciliation does not automatically revive the former property regime of the spouses. If the
spouses want to revive the previous property regime, they must execute an agreement to revive the former
property regime, which agreement shall be submitted in court, together with a verified motion for its
approval (FC, Art. 67).

The agreement to revive must be under oath and 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 (Pineda, 2008)

Effects of reconciliation while the petition is being heard by the court

If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by
them shall be filed with the court in the same proceeding for legal separation.

The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage.

How is the marriage property divided in legal separation?

Net profits of the conjugal property are given to the spouse without fault.
The rule in legal separation is that the spouse at fault shall have no right to any share of the net
profits earned by the couple’s common property during the marriage. His or her share of the net
profits is forfeited in favor of the children or the innocent spouse.

What are net profits?

Net profits are the increase in value between the market value of the community property at the
time of the celebration of the marriage and the market value at the time of its dissolution. This is
the doctrine from Quiao vs. Quaio (2012).

Quiao was a case for legal separation filed by the wife against the husband. The spouses had no
assets when they married in 1977. By the time of the legal separation, they had numerous
valuable properties (land, several mills and a factory).

Quiaos had several assets at the time of separation.

Legal separation was granted in 2005, with the Trial Court finding that the husband was at fault.
The husband, therefore, was held not entitled to any share of the net profits of the conjugal
property.
The husband asked the Trial Court to clarify what net profits meant. The Trial Court ruled that,
since the spouses had no assets when they married in 1977, this meant that all the assets
inventoried in 2005 were deemed net profits to which the husband had forfeited his share.

NOTE: BEFORE THE EFFECTIVITY OF THE FAMILY CODE IF THE SPOUSES GOT
MARRIED WITHOUT PRENUPTIAL AGREEMENT / MARRIAGE SETTLEMENT THEN
THEIR PROPERTY REGIME WILL BE CONJUGAL PARTNERSHIP OF GAINS.
NOTE: WHEN THE MARRIAGE IS CELEBRATED AT THE EFFECTIVITY OF THE
FAMILY CODE AND THE SPOUSES GOT MARRIED WITHOUT PRENUPTIAL
AGREEMENT / MARRIAGE SETTLEMENT THEIR PROPERTY REGIME WILL BE
ABSOLUTELY COMMUNITY PROPERTY.
FAMILY CODE EFFECTIVITY: AUGUST 03, 1988

Net Profit Computation under Absolute Community or Conjugal Partnership of Gains

The Supreme Court ruling explained how net profits were computed. The procedure depended on
whether the marriage regime was one of absolute community or of conjugal partnership of gains.

Conjugal partnership of gains governed marriages under the Civil Code.

Absolute community has been the default setting for marriages since the Family Code came into
effect in 1988.

In absolute community, all the assets of the spouses are deemed conjugal property.

If the Quiao marriage were a regime of absolute community, net profits would be computed as

follows:
(a) According to the trial court’s finding of facts, both husband and wife have no separate
properties, thus, the remaining properties in the list above are all part of the absolute
community. And its market value at the time of the dissolution of the absolute
community constitutes the market value at dissolution.

(b) All the properties which remained will be liable for the debts and obligations of the
community. Such debts and obligations will be subtracted from the market value at
dissolution.

Debt is deducted from the total assets.

(c) What remains after the debts and obligations have been paid from the total assets of
the absolute community constitutes the net remainder or net asset. And from such net
asset/remainder of the petitioner and respondent’s remaining properties, the market value
at the time of marriage will be subtracted and the resulting totality constitutes the net
profits.
 (d) Since both husband and wife have no separate properties, and nothing would be
returned to each of them, what will be divided equally between them is simply the net
profits. However, in the Decision dated October 10, 2005, the trial court forfeited the
half-share of the petitioner in favor of his children. Thus, if we use Article 102 in the
instant case (which should not be the case), nothing is left to the petitioner since both
parties entered into their marriage without bringing with them any property.

Conclusion
In conclusion, nothing was left to the husband of the numerous properties acquired during the
marriage because of the following reasons.

*The husband was left without any property.

1. There had been no assets at the start of the marriage; and,
2. He was the guilty party entitled to no part of the net profits at the dissolution of the
property regime.

GROUNDS FOR ANNULMENT

Voidable Marriage - A voidable marriage is considered valid and produces all its civil effects
until it is set aside by final judgment of a competent court in an action for annulment. Simply, a
voidable marriage is valid until it is annulled .

Art. 45 of the Family Code. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was
eighteen years of age or over but below twenty-one, and the marriage was
solemnized without the consent of the parents, guardian or person having substitute
parental authority over the party, in that order, unless after attaining the age of
twenty-one, such party freely cohabited with the other and both lived together as
husband and wife;

(2) That either party was of unsound mind, unless such party after coming to
reason, freely cohabited with the other as husband and wife;

Determination of the unsoundness of mind as a ground for annulment

It is essential that the mental incapacity must relate specifically to the contract of
marriage and the test is whether the party at the time of the marriage was capable of
understanding the nature and consequences of the marriage (Rabuya, 2018)

(3) That the consent of either party was obtained by fraud, unless such party
afterwards, with full knowledge of the facts constituting the fraud, freely cohabited
with the other as husband and wife;

Circumstances constituting FRAUD under Art. 45(3)

1. Non-disclosure of a previous conviction by final judgment of the other party of a crime

involving moral turpitude;

2. Concealment by the wife of the fact that at the time of marriage, she was pregnant by
a man other than her husband;

NOTE: Where there has been no misrepresentation or fraud, that is, when the
husband at the time of the marriage knew that the wife was pregnant, the marriage cannot
be annulled (Buccat v. Buccat, G.R. No. 47101, April 25, 1941)

3. Concealment of sexually transmitted disease, regardless of nature, existing at the time

of marriage; or

4. Concealment of drug addiction, habitual alcoholism, homosexuality and lesbianism

(FC, Art. 46).

(4) That the consent of either party was obtained by force, intimidation or undue
influence, unless the same having disappeared or ceased, such party thereafter
freely cohabited with the other as husband and wife;

There is vitiation of consent when:

General Rule: Consent of either party was obtained by force, intimidation or undue
influence.
Force or violence–“There is violence when, in order to wrest consent, serious or
irresistible force is employed.

Intimidation – “There is intimidation when one of the contracting parties is compelled

by a reasonable and wellgrounded fear of an imminent and grave evil upon his person or
property, or upon the person or property of his spouse, descendants, or ascendants, to
give his consent” (NCC,Art. 1335, par. 2,).

Undue influence – control over one’s will

XPN: However, if the same having disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife. A threat to enforce one's claim through
competent authority however, if the claim is just or legal, does not vitiate consent

(5) That either party was physically incapable of consummating the marriage with
the other, and such incapacity continues and appears to be incurable; or

Requisites for impotence to be a ground for annulment of marriage

1. Exists at the time of the Celebration of marriage;

2. Permanent (does not have to be absolute);

3. Incurable;

4. Unknown to the other spouse; and,

5. The other spouse must not also be Impotent

Doctrine Triennial cohabitation

If after 3years of living together with her husband, the wife remained a virgin, the
husband is presumed to be impotent (Rabuya, 2018).

(6) That either party was afflicted with a sexually-transmissible disease found to be
serious and appears to be incurable

Requisites of affliction of a SEXUALLY TRANSMITTED DISEASE (STD) as a

ground for annulment
1. One of the parties is afflicted with STD;
2. STD must be:
a. Existing at the time the marriage is celebrated;
b. Serious; and
 c. Apparently Incurable;
3. The other spouse is not aware of the other’s affliction; and
4. The injured party must be free from STD.

Effects of Decree of Annulment

1. Termination of the marital bond, as if it had never been entered into, but the effects
thereof are not totally wiped out;
2. Children conceived or born before the judgment of annulment has become final and
executory are considered legitimate;
3. Absolute community property regime or the conjugal partnership property regime is
terminated or dissolved and the same shall be liquidated in accordance with the
provisions of Arts. 102 and 129 of the Family Code;
4. The innocent spouse may revoke the designation of the other spouse who acted in bad
faith as beneficiary in the insurance policy whether or not the designation is revocable;
5. The spouse who contracted the marriage in bad faith shall be disqualified to inherit
from the innocent spouse by testate and intestate succession;