1

Marriage and Dissolution of Marriage

Lesson 1. Marriage
This chapter introduces the fundamental concepts of marriage, marriage under
Philippine law, the annulment of marriage, the legal separation, and the divorce.

Marriage is a special contract of

permanent union between a man and a
woman centered into an accordance with
law where the establishment of conjugal
and family life.
Marriage is a social union or
legal contract between individuals that
creates kinship. It is an institution in
which interpersonal relationships,
usually intimate and sexual, are
acknowledged by a variety of ways,
depending on the culture or
demographic.

According to Confucius, “Marriage is the union of two different surnames, in

friendship and in love, in order to continue the posterity of the former sages, and to furnish
those who shall preside at the sacrifices to heaven and earth, at those in the ancestral temple,
and at those at the altars to the spirits of the land and grain.”
Philosopher, historian, and literary essayist Thomas De Quincey defined marriage as
“a union between two persons, who lived in harmony so absolute with each other, as to be
independent of the world outside.”
The primary definition of Marriage in Merriam-Webster is the state of being united to
a person of the opposite sex as husband or wife in a consensual and contractual relationship
recognized by law family.

What motivates someone to marry?

The following are some of the reasons:
a. love, economic e. adventure,
b. parents’ wishes f. protection, and

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c. escape from loneliness and many more. g. sexual attraction

d. financial security

Forms Of Marriage
1. Monogamy. This refers to marriage of 1 male and one female. It is a form of
marriage in which an individual has only one spouse during their lifetime or at
any one time.
2. Polygamy. The refers to the marriage between one person of 1 sex and a
minimum of two persons of the other sex. It is a marriage which includes more
than two partners.

Types Of Polygamy
a. Polyandry – it refers to the marriage of one woman to two or more men
b. Polygyny – refers to the marriage of one man to two or more women.
c. Plural – it‟s a first group marriage also known as multi-lateral
marriage it‟s a form of polyamory in which more than two persons form
a family unit with all the members of the group marriage being
considered to be married to all the other members of the group
marriage and all the members of the marriage share parental
responsibility for any children arising from the marriage.

Kinds of Marriage
1. Adoptive Marriage – practiced in Japan. If the family does not have a son to
preserve the surname, the prospective son-in-law adopts the family name of the
bride s parents before the marriage. In doing so, the bride’s family name is not
change.

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 2. Sororate Marriage – is sometimes called the sister-in-law marriage. It is
called as such because a man remarries his deceased wife‟s sister.
3. Levirate Marriage – the reverse of sororate marriage. Under this form of
marriage, where woman tries to remarries the deceased husband‟s brother.
4. Ghost Marriage - similar to levirate marriage. The children of the woman
who married the deceased husband‟s brother are considered “sired” by the
dead husband. That means, the second husband or the brother is only a
“surrogate” or a who substitute for his brother.
5. Endogamy Marriage - is the practice of marrying within a specific social
group, caste, or ethnic group, rejecting those from others as unsuitable for
marriage or other close personal relationships. Endogamy is common in many
cultures and ethnic groups.
6. Exogamy Marriage - is the social norm of marrying outside one's social
group. The group defines the scope and extent of exogamy, and the rules and
enforcement mechanisms that ensure its continuity. One form of exogamy is
dual exogamy, in which two groups engage in continual wife exchange.

Residences after Marriage

1. Neolocal Residence — This means that the newly married couple lives in their
own residence.

2. Patrilocal Residence — This means that the newly married couple moves in
with the husband’s parents. Virilocal residence is another term used for this type of
residence.

3. Matrilocal Residence — This means that the newly married couple moves in
with the wife’s parents. Uxorilocal residence is another term used for this type of
residence.

4. Bilocal Residence—This means that the newly married couple shifts residence
from matrilocal to patrilocal residence. The reason for this shift may be due to
financial reason, parents’ wishes, or some other reasons. By doing so, the couple can
save money (Saquilayan, et. al, 2011).

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What is a Marriage License?

A marriage license is a document issued, either by a church or state

authorithy, authorizing a couple to marry. The procedure for obtaining a license varies
between jurisdictions and has changed over time. Marriage licenses began to be issued
in the Middle Ages, to permit a marriage which would otherwise be illegal (for instance,
if the necessary period of notice for the marriage had not been given).

A Marriage Certificate is a document that shows social union or a legal

contract between people that creates kinship. Such a union, often formalized via a
wedding ceremony, may also be called matrimony. A general definition of marriage is
that it is a social contract between two individuals that unites their lives legally,
economically and emotionally.

What is Common-Law Marriage?

Common-law marriage, also
known as non-ceremonial
marriage, sui iuris marriage,
informal marriage, or marriage
by habit and repute, is a legal
framework where a couple may be
considered married without
having
formally registered their relation
as a civil or religious marriage.
The original concept of a
"common-law marriage" is one
considered valid by both partners but
not formally recorded with a state or
religious registry, nor celebrated in a
formal civil or religious service. In
effect, the act of the couple
representing themselves to others as
being married and organizing their
relation as if

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they were married, means they are married.
The term common-law marriage (or similar) has wider informal use, often to
denote relations that are not legally recognized as marriages. It is often used colloquially
or by the media to refer to cohabiting couples, regardless of any legal rights or religious
implications involved. This can create confusion in regard to the term and to the legal
rights of unmarried partners (in addition to the actual status of the couple referred to).

What is Same-sex Marriage?

Same-sex marriage, also
known as gay marriage, is the marriage
of two people of the same sex or gender,
entered into in a civil or religious
ceremony. There are records of same-sex
marriage dating back to the first century.
In the modern era, marriage equality was
first granted to same-sex couples in the
Netherlands on 1 April 2001.
As of 2021, same-sex marriage is
legally performed and recognized in 29
countries (nationwide or in some  Portugal
jurisdictions):
 Finlan
d
 Argentina France South Africa
 Australia
 Austria  Germany  Spain
 Belgium  Iceland  Sweden
 Brazil  Ireland  Taiwan
 Canada  Luxembour  United Kingdom
 Colombia g  United States
 Costa  Malta  Uruguay
Rica  Mexico
 Denmark  Netherlands
 Ecuador  New
 Zealand
 Norway


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Financial Considerations of Marriage

1. Dowry. A dowry is a transfer of parental property, gifts, property or

money upon the marriage of a daughter. Dowry contrasts with the related
concepts of bride price and dower. The dowry is intended to help set up
the couple's new household, especially in cultures where it is rare for a
woman to work outside the home. If a woman died without having any
sons, her husband would have to return the dowry to the bride's family,
deducting the value of the bride price.
2. Bride Price and Dower. In other cultures, the groom or his family was
expected to pay a bride price did the bride‟s family for the right to marry
the daughter, or dower, which was payable to the bride. This required the
groom to work for the bride‟s family for a set period of time.
3. Modern Customs. In many countries today, each marriage partner has
the choice of keeping his or her property separate or combining properties.
In the latter case

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called Community property, when the marriage ends by divorce each owns half. In
any legal jurisdictions, laws related to property and inheritance provide by default
for property to pass upon the death of one party in a marriage free sleep to the
spouse and secondly to the children.
4. Taxation. In some countries, spouses are allowed to average their
incomes, this is advantageous to a married couple with desperate
incomes. To compensate for this, many countries provide a higher tax
bracket for the average income of a married couple. Well income
averaging might still benefit a married couple with a stay at home
spouse, search averaging would cause a married couple with roughly
equal personal incomes to pay more total tax than they would as two
single persons.

Termination Of Marriage
1. Death
2. Divorce
3. Annulment

Note: After divorce, one spouse may have to pay alimony.

Alimony, maintenance or spousal support is an obligation established by

divorce law in many countries that is based on the premise that both spouses have an
absolute obligation to support each other during the marriage (or civil union) unless
they are legally separated. In some instances, the obligation to support may continue
after separation or divorce.
The earliest example of alimony is mentioned in the first recorded code of laws in
the world; the Code of Ur-Nammu. In it, a man who divorced his wife was supposed
to pay her a Mina.

Lesson 2. Marriage under Philippine Law

Executive Order No. 209 (the Family Code of the Philippines, as amended by
Executive Order No. 227) prescribe the following legal provisions concerning marriage.
Marriage (Article 1, FC)
Marriage is a special contract of permanent union between a man and a woman
entered into in accordance with law for the establishment of conjugal and family life. It
is the foundation of the family and an inviolable social institution whose nature,
consequences, and incidents are governed by law and not subject to Stipulation, except

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that marriage settlements may fix the property relations during the marriage within the
limits provided by this Code. (Desiderio, 2006).

Two (2) essential requisites of valid marriage are (Art. 2, FC):

a. Legal capacity of the contracting parties who must be a male and a female; and
b. Consent freely given in the presence of the solemnizing officer.

Three (3) formal requisites of marriage are (Art. 3):

1. Authority of the solemnizing officer;
2. A valid marriage license except in the cases provided for in Chapter 2 of
this Title.
Chapter 2 of Family Code Provides Marriages Exempted from License
Requirement
1. Marriages in articulo mortis or at the point of death (Art, 27 FC.);
2. Marriages remote places (Art. 28, FC.);
3. Marriages between Muslims or among members of the ethnic cultural communities
(Art. 33, FC.);
4. Legal ratification of marital cohabitation (Art. 34, FC.).

Legal Requisites for Marital Cohabitation

1. The man and woman must have been living together as husband and wife for at least
five (5) years before marriage.
2. The parties must have no legal impediment to marry each other.
3. The fact of absence of legal impediment between the parties must be present at the
time of marriage, not during their five (5) year cohabitation.
4. The parties must execute an affidavit stating that they ha? lived together for at least
five (5) years; and
5. The solemnizing officer must execute a sworn statement that he had ascertained the
qualifications of the parties and that he found no legal impediment to their marriage.
6. Marriages solemnized outside the Philippines where © marriage license is required
by the country where it we solemnized (Desiderio, 2006).

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 Note: No. 3 is governed by the Islamic Law on family relations embodied
in
P.D. 1083.

3. A marriage ceremony which takes place with:

a. Appearance of the contracting parties before the solemnizing officer;

b. Their personal declaration that they take each other as husband and wife;
and

c. In the presence of not less than two (2) witnesses of legal age.

Note: The absence of any of the essential or formal requisites shall render the
marriage void ab initio (Art. 4), except as stated in Article 35 (2) which is read as
follows...

“Those solemnized by any person not legally authorized to perform marriages

unless such marriages were contracted with either or both parties believing in good
faith that the solemnizing officer had the legal authority to do so.”

A defect in any of the essential requisites shall not affect the validity of the
marriage but the party or parties responsible for the irregularity shall be civilly,
criminally and administratively liable.

No prescribed form or religious rite for the solemnization of the marriage is

required. It shall be necessary, however, for the contracting parties to appear personally
before the solemnizing Officer and declare in the presence of not less than two witnesses
of legal age that they take each other as husband and wife. This declaration shall be
contained in the marriage certificate which Shall be signed by the contracting parties
and their witnesses and attested by the solemnizing officer (Art. 6).

In case of a marriage in articulo mortis, when the party at the point of death is
unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to
the marriage to write the name of said party, which fact shall be attested by the
solemnizing officer (Desiderio, 2006).

Can I use “parental consent” and “parental advice" interchangeably?

What are the differences?

No, “parental consent” and “parental advice” CANNOT be used interchangeably.

Parental consent is required when either or both of the contracting parties are
between the ages of eighteen (18) and twenty-one (21).

Parental advice, on the other hand, is required if either or both of the

contracting parties is/are between the age of twenty-one (21) and twenty-five (25). The

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“parental consent” or “parental advice”, as the case may be, is required during the
application for a marriage license (Philippine e-Legal Forum).

What happens if parental consent is required, but not secured of given?

The marriage is voidable, subject to the filing of a petition for annulment. In

other words, the marriage is valid until annulled. There are two limitations:

1. It could be filed only on behalf of the party who is between 18 and 21 at the time of
marriage.

2. The petition could no longer be filed after the concerned party reaches 21 and freely
cohabited with the other, ané both lived together as husband and wife. The marriage
® considered ratified if no petition is timely filed (Philippine e-Legal Forum).

Could the parents give their consent to the marriage of their child who is
below 18 years old?

The marriage of a person below 18 years of age ever with the consent of the
parents, are void ab initio (void from the very beginning). Capacity to marry of both
parties is an essential requisite of marriage the absence of which renders the mam null
and void (Philippine e-Legal Forum).

Who are allowed to Solemnize Marriage?

The following are permitted to sanctify marriages:

1. The Chief Justice and Associate Justices of the Supreme Court.

2. The presiding Justice and Justices of the Court of Appeals.

3. Judges of the Courts of First Instance.

4. Mayors of cities and municipalities.

5. Municipal judges and justices of the peace.

6. Any priests, rabbis, imams, or ministers of the gospel of any denomination, church,
religion or sect, duly registered, acting within the limits of the written authority
granted by his church or religious sect and provided that at least one of the
contracting parties belongs to the solemnizing officer’s church/religious sect (Art. 56,
Civil Code);

7. Any ship captain or airplane chief.

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 A ship captain, airplane pilot or military commander of a unit may solemnize a
marriage the following requisite must concur:
a. The marriage must be in articulo mortis; and
b. It must be solemnized while the ship is at sea or the plane is in flight or during
stopovers at ports of call (Art. 31, FC.).

8. Any military commander of a unit to which a chaplain is assigned, in the absence of

the latter, during a military Operation; and in the case of a commanding officer of an
army unit, it is essential that the following requisites must concur:

a. The marriage must be in articulo mortis.

b. It must be solemnized only in the absence of a chaplain.

c. The military commander must be a commissioned officer; and

d. it must be solemnized in the zone of military operation (Art. 32, FC.)

9. Any consul-general, consul or vice-consul in the case provided in Article 10 of Family

code which provides that…….

“Marriages between Filipino citizens abroad may be solemnized by a consul-

general, consul or vice-consul of the Republic of the Philippines. The issuance of the
marriage license and the duties of the local civil registrar and of the solemnizing
officer with regard to the celebration of marriage shall be performed by said
consular official (Desiderio, 2006). “

How is Marriage Solemnize?

The marriage shall be solemnized publicly in the office of the judge in open
court or of the mayor; or in the church, chapel or temple, as the case may be, and not
elsewhere, except in cases of marriages contracted on the point of death or in remote
places. When one of the parents or the guardian of the female or the latter herself if
over eighteen years of age request
it in writing, which cases the marriage may be solemnized at a house or place
designated by said parent or guardian of the female or by the latter herself in a sworn
statement to that effect (Art. 57, Civil Code).

Who Confers Marriage License?

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 A marriage license shall be issued by the local civil registrar of the city or
municipality where either contracting party habitual of resides, except in marriages
where no license is required (Art. 9).

Requisites of Marriage Certificate

The marriage certificate, in which the parties shall declare that they take each
other as husband and wife, shall also state:
1. The full name, sex and age of each contracting party.
2. Their citizenship, religion and habitual residence.
3. The date and precise time of the celebration of the marriage.
4. That the proper marriage license has been issued according to law, except in
marriage provided for in Chapter 2 of this Title.
5. That either or both of the contracting parties have secured the parental consent
in appropriate cases.
6. That either or both of the contracting parties have complied with the legal
requirement regarding parental advice in appropriate cases; and
7. That the parties have entered into marriage settlement, if any, attaching a copy
thereof (Art. 22, FC, Desiderio, 2006).

Void and Voidable Marriages (Art. 35, E.O. 209)

The following marriages shall be void from the beginning:

1. Those contracted by any party below eighteen years of age even with the consent
of parents or guardians.

2. Those solemnized by any person not legally authorized to perform marriages

unless such marriages were contracted with either or both parties believing in
good faith that the solemnizing officer had the legal authority to do so;

3. Those solemnized without license, except those covered the preceding Chapter.

4. Those bigamous or polygamous marriages not failing under Article 41 which

provides that...
“A marriage contracted by any person during subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the
spouse present has a well-founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death under the circumstances set
forth in the provisions of Article 391 of the Civil Code, an absence of only two years
shall be sufficient.”

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5. Those contracted through mistake of one contracting party as to the identity of the
other.

1. Those subsequent marriages that is void under Article 53 which is read as follows...
“Either of the former spouses may marry again after compliance with the
requirements of the immediately preceding Article; otherwise, the subsequent
marriage shall be null and void.”
7. Those marriages contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of
marriage, even if such incapacity becomes manifest only after its solemnization based
on Art. 36, FC, as amended by E.0. 227;
What is psychological incapacity?
Ans.: Psychological incapacity refers to no less than a mental (not physical) incapacity
that causes a party to be truly not cognitive of the basic marital covenants that
concomitantly must be assumed and discharged by the parties to the marriage which, as
so expressed by Art. 68 of the FC, includes their mutual obligations to live together,
observe love, respect and fidelity, and render help and support.
Examples of Psychological Incapacity (Art. 36 of FC)
a. The husband/wife refuses to dwell with and subsequently leaves the husband/wife
and without fault on the part of the latter.
b. The husband/wife leaves the spouse without any justifiable cause.
c. The husband/ wife refuses to have sex with the spouse (Chi Ming Tsoi vs. CA, G.R. No.
119190, Jan. 16, 1997, 78 SCAD 57);
d. The wife refuses to have children.
e. There is unbearable jealousy on the part of either party, hence, making the common
life of the parties unbearable.
f. Immaturity or where there is lack of rational judgment and responsibility as when the
husband refuses to support the family.
g. The husband or the wife cannot shoulder the heavy responsibility of being a parent;
h. There is consistent lying and paranoid jealousy. Consistent lies and fabrications made
by a spouse sufficiently satisfy the guidelines in the declaration of nullity due to
psychological incapacity.
8. Incestuous marriages, whether the relationship between the parties be legitimate or
illegitimate (Art. 37, FC.); and

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9. Those which are declared void because they are contrary to public policy (Art. 38, FC,
Desiderio, 2006).
What is the reason behind the rule that a void marriage must be declared
void?
Ans.: The reason behind the rule is to do away with any continuing uncertainty on the
status of the second marriage.
Incestuous and void marriages, whether relationship between the parties
be legitimate or illegitimate:
1. Between ascendants and descendants of any degree; and
2. Between brothers and sisters, whether of the full or half blood (Art. 37, FC).
The following marriages shall be void from the beginning for reasons of
public policy:
1. Between collateral blood relatives whether legitimate or illegitimate, up to the
fourth civil degree;
2. Between step-parents and step-children;
3. Between parents-in-law and children-in-law;
4. Between the adopting parent and the adopted child;
5. Between the surviving spouse of the adopting parent and the adopted child;
6. Between the surviving spouse of the adopted child and the adopter.
7. Between an adopted child and a legitimate child of the adopter.
8. Between adopted children of the same adopter; and
9. Between parties where one, with the intention to marry the other, killed that other
person’s spouse, or his or her own spouse (Art. 38, FC).

Note: Under the Family Code, the following can now marry:
1. Brother-in-law and sister-in-law.
2. Stepbrother and stepsister.
3. Guardian and ward.
4. Adopted and illegitimate child of the adopter.

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 5. Adopted son of the husband, and adopted daughter of the wife; and
6. Parties who have been convicted of adultery or concubinage.

Lesson 3. Annulment of Marriage

Annulment is a legal procedure for declaring a marriage null and void.
Unlike divorce, it is retroactive: an annulled marriage is considered never to have
existed.
In strict legal terminology, annulment refers only to making a voidable
marriage null; if the marriage is void ab initio, then it is automatically null, although a
legal declaration of nullity is required to establish this (Desiderio, 2006).

Reasons for Annulment

A reason for annulment is called a diriment impediment to the marriage.
Prohibitory impediments make entering a marriage wrong but do not invalidate the
marriage, such as being betrothed t0 another person at the time of the wedding;
diriment impediments such as being brother and sister or being married to another
person at the time of the wedding, prevent such a marriage from being contracted at all.
Such unions are called putative marriage (Desiderio, 2006).

Diriment Impediments
The following are Diriment Impediments:
1. Consanguinity.
2. Insanity precluding ability to consent.
3. Not intending, when marrying, to remain faithful to the spouse (simulation of
consent);
4. One partner had been deceived by the other in order to obtain consent, and if the
partner had been aware of the truth, would not have consented to marry.
5. Abduction of a person, with the intent to compel them to marry (known as
raptus), constitutes an impediment as long as they remain in the kidnapper’s
power.
6. Failure to adhere to the requirements of Canon Law for marriage, such as
clandestinely.

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 7. The couple killed the spouse of one of them in order to be free to marry; and
8. The couple committed adultery, and one of the couple killed the spouse of one of
them, in order to be free to marry (Desiderio, 2006).
Six (6) Grounds of Annulment of Marriage
Marriage may be annulled for any of the following causes:
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;
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;
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;
5. That either party was physically incapable of consummating the marriage with the
other, and such incapacity continues and appears to be incurable; or
6. That either party was afflicted with a sexually-transmissible disease found to be
serious and appears to be incurable (Art. 45, FC, Desiderio, 2006).
What is the test that must be applied in order to determine whether or not a
person is physically incapable of consummating the marriage with the other
party?
Answer: The test is not the capacity to reproduce, but the capacity to copulate (Sarao
vs. Guevarra, CA, Off. Gaz. 263.) Consequently: physical incapacity as a ground for
annulment of marriage refers to impotency or the inability to perform the sexual act,
and not sterility or the inability to procreate (Menciano vs. San Jose, 89 Phil. 63).
Requisites in order that physical incapacity will serve as a ground for
annulment of marriage:
1. That either party was, at the time of the marriage, physically incapable of
consummating the marriage with other.

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2. That such incapacity continues.
3. That it appears to be incurable; and
4. At the time of marriage, it was unknown to the other party (Art. 45 (5), FC).

What is the so-called doctrine of Triennial Cohabitation?

Answer.: As opposed to the general rule in favor of potency, the so-called
doctrine of triennial cohabitation is the doctrine applied in England and by some U.S.
courts which declare the presumption that the husband is impotent should the wife still
remain a virgin after living together with the husband for three (3) years. The husband
will have to overcome this presumption (Tompkins vs. Tompkins, 92 N.J. eg. Atl. 599).
Fraud as a Ground for Marriage Annulment
The following circumstances shall constitute fraud:
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 the marriage, she was
pregnant by a man other than her husband.
3. Concealment of sexually transmissible disease, regardless of its nature, existing at
the time of the marriage; or
4. Concealment of drug addiction, habitual alcoholism or homosexuality or
lesbianism existing at the time of the marriage (Art. 46, FC, Desiderio, 2006).
No other misrepresentation or deceit as to character, health, rank, fortune or
chastity shall constitute such fraud as will Give grounds for action for the annulment of
marriage.
How will the conjugal dwelling and the lot on which it is situated be
adjudicated in case the final judgment of annulment or declaration of
nullity of marriage provide for the partition of the properties of spouses?
Answer: In partition of properties of the spouses, the conjugal dwelling and the
lot on which it is situated shall be:
a. Adjudicated to the spouse with whom the majority of the common children
should choose to remain;
b. Children below 7 years are deemed to have chosen the mother, unless the court
decides otherwise (Art. 102, (6), F.C.); and

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 c. In case there is no majority of the common children, the court shall decide,
taking into account the best interests of the children (Art. 129, (9), F.C.).

Lesson4. Legal Separation

Legal separation (sometimes “judicial separation”, “separate maintenance”,
“divorce a mensa et thoro” or “divorce from bed-and-board”) is a legal process by which
a married couple may formalize a de facto separation whilst remaining legally married.
A mensa et thoro is a Latin phrase which means “from table and bed.”
although it is often translated as “from bed and beard.” a mensa et thoro is essentially a
court-sanctioned separation, meaning that the spouses may legally live apart, but they
are still legally married. The legitimacy of children in the marriage remains intact, and
the spouses may not remarry. This type of divorce allows the couple to live apart without
fear of being taken to court for desertion.
Who and when may petition for legal separation be filed?
Answer: A petition for legal separation may be filed only by the husband and wife,
as the case may be, within five (5) years” from the time of the occurrence of any of the
grounds for legal separation.
Ten (10) Grounds for Legal Separation
1. Repeated physical violence or grossly abusive conduct directed against the
petitioner, a common child, or a child of the petitioner.
2. Physical violence or moral pressure to compel the petitioner to change religious
or political affiliation.
3. 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.
4. Final judgment sentencing the respondent to imprisonment of more than six
years, even if pardoned.
5. Drug addiction or habitual alcoholism of the respondent.
6. Lesbianism or homosexuality of the respondent.

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 7. Contracting by the respondent of a subsequent bigamous marriage, whether in
the Philippines or abroad.
8. Sexual infidelity or perversion.
9. Attempt by the respondent against the life of the petitioner; or
10. Abandonment of petitioner by respondent without justifiable cause for more
than one year (Art. 55, FC, Desiderio, 2006).

Denial of petition for legal separation shall be on any of the following

grounds:
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 decree of legal separation;
or
6. Prescription of action or where the action was not filed within five (5) years from
the time of the occurrence of the cause (Art. 56, FC, Desiderio, 2006).
The decree of legal separation shall have the following effects:
1. The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed.
2. The absolute community or the conjugal partnership shall be dissolved and
liquidated but the offending spouse shall have no right to any share of the net
profits earned by the absolute community or the conjugal partnership, which
shall be forfeited in accordance with the provisions Article 43(2) of the F.C. which
read as...
“The absolute community of property or the conjugal partnership, as the case
may be, shall be dissolved and liquidated, but if either spouse contracted said
marriage in bad faith, his or her share of the net profits of the community property
or conjugal partnership property shall be forfeited in favor of the common children

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 or, if there are none, the children of the guilty spouse by a previous marriage or in
default of children, the innocent spouse.”
3. The custody of the minor children shall be awarded to the innocent spouse,
subject to the provisions of Article 213 of FC which read as...
“In case of separation of the parents, parental authority shall be exercised by the
parent designated by the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the
parent chosen is unfit.”
4. The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending spouse
made in the will of the innocent spouse shall be revoked by operation of law (Art. 63,
FC, Desiderlo, 2006).

Effects of Filing of Petition for Legal Separation are:

1. The spouses are entitled to live separately from each other. She can already have
a residence of her own separate from her husband's residence.

2. The husband has no more rights to have sexual intercourse with his wife and if he
forces himself upon her, he can be charged criminally.

3. The court shall designate the husband or the wife to manage the absolute
community or conjugal partnership property in the absence of an agreement
between spouses.

4. The court may designate a third person to administer the properties of the spouses
(Art. 61, FC, Desiderio, 2006).

Distinctions of Legal Separation from Annulment of Marriage are:

1. The marriage is not effective in legal separation. The marriage is defective in

annulment.

2. In legal separation, the grounds arise only after the marriage, in annulment of
marriage, the grounds must exist at the time of or before the marriage.

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3. In legal separation, the spouses are still married to each Other and cannot
therefore, remarry. In annulment of marriage, the spouses can marry again as the
marriage is set aside.

4. In legal separation, there are ten (10) grounds for legaj separation while in
annulment there are only six (6) grounds (Desiderio, 2006).

Note: A pending Bill in congress provides that the grounds for Annulment of
Marriage under the Family Code be used as grounds in divorce, and the
grounds in legal separation be the grounds for annulment of marriage.

Lesson 5. Divorce

Divorce or dissolution of marriage is the final termination of a marriage,

canceling the legal duties and responsibilities of marriage and dissolving the bonds
of matrimony between two persons. In most countries, divorce requires the sanction
of a judge or other authority in a legal process.

The legal process for divorce may also involve issues of spouse support, child
custody, child support, distribution of property and division of debt, though these
matters are usually only ancillary or consequential to the dissolution of the marriage
(Leges Juris Associates, 2009-2013).

Types of Divorce
The following are types of Divorce:
1. No-fault Divorce

Under a no-fault divorce system, the dissolution of a marriage does not require
an allegation or proof of fault of either Party. The application can be made by either
party or by both. The same holds true for Canada and Germany.

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2. At-fault Divorce

Prior to 1975, countries which permitted divorces also required proof by one
party that the other party had committed an act incompatible to the marriage. This
was termed “grounds” for divorce (popularly called “fault”) and was the only way to
terminate a marriage. Most jurisdictions around the world still require such proof of
fault.

3. Summary Divorce

A summary (or simple) divorce, available in some jurisdictions, is used when

spouses meet certain eligibility requirements, or can agree on key issues
beforehand.

Key Factors:

a. Short marriage (less than 5 years)

b. No children (in some states, they have resolved custody and set child support
payments)
c. Minimal or no real property (no mortgage)
d. Marital property is under a threshold
e. Each spouse’s personal property is under a threshold (typically the same as
marital property)

4. Uncontested Divorce
It is estimated that upwards of 95% of divorces in the US are “uncontested,”
because the two parties are able to come to an agreement (either with or without
lawyers/mediators/collaborative counsel) about the property, children and support
issues. When the Parties can agree and present the court with a fair and equitable
agreement, approval of the divorce is almost guaranteed. If the two parties cannot
come to an agreement, they may ask the court to decide how to split property and
deal with the custody of their children.

5. Collaborative Divorce

Collaborative divorce is becoming a popular method for divorcing couples to

come to agreement on divorce issues. In a collaborative divorce, the parties negotiate
an agreed resolution with the assistance of attorneys who are trained in the
collaborative divorce process and in mediation, and often with the assistance of a
neutral financial specialist and/or divorce coaches. The parties are empowered to
make their own decisions based on their own needs and interests, but with complete
information and full professional support.

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 Once the collaborative divorce starts, the lawyers are disqualified from
representing the parties in a contested legal proceeding should the collaborative law
process end prematurely.

6. Mediated Divorce

Divorce mediation is an alternative to traditional divorcé litigation. In a divorce

mediation session, a mediator facilitates the discussion between the husband and
wife by assisting with communication and providing information and suggestions t?
help resolve differences. At the end of the mediation process the separating parties
have typically developed a tailored divorcé 4 agreement that can be submitted to the
court (Kassulke, 2013).
Grounds for Divorce
There are three principal players involved in your marriage that will also be
involved in your divorce: you, your spouse, and the state. You cannot simply
break up, saddle your charger, and ride off into the sunset. Among other legal
considerations, you have to give the state an acceptable reason why you should be
allowed to break. The reason to known as the ground for your divorce. Over the years
each state has enacted legislation that governs acceptable grounds.
There are different grounds annulment. Some states only have a single ground for
divorce -no- fault or irreconcilable differences. Typical grounds for an absolute
divorce are:
 adultery.
 desertion (constructive and actual);
 voluntary separation.
 criminal conviction of a felony or misdemeanor.
 insanity.
Although any one of these grounds is enough for a limited divorce, a limited
divorce will not completely terminate your marital status. In order to do so you must
either seek an absolute divorce or an annulment (SmartLegalForms, 2004-2013).

Note: Divorce is not practiced in the Philippines

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