LEGAL SEPARATION AND DIVORCE

OBJECTIVES

• Distinguish legal separation and

divorce
• Identify and examine the grounds for
legal separation
 LEGAL SEPARATION

• ALSO KNOWN AS JUDICIAL SEPARATION

OR SEPARATE MAINTENANCE
• DIVORCE A MENSA ET THORO OR
DIVORCE FROM BED- AND – BOARD
 LEGAL SEPARATION
• IT IS A LEGAL PROCESS BY WHICH A MARRIED
COUPLE FORMALIZE A DE FACTO SEPARATION
WHILST REMAINING LEGALLY MARRIED.
• Legal separation is a legal remedy for couples suffering
from a problematic marriage. In legal separation, the
couple is allowed to live apart and separately own assets
 WHAT IS LEGAL SEPARATION IN
THE PHILIPPINES?
• Legal separation is a court-approved decision of the court that
allows the separation of husband and wife. Under legal
separation, the marital obligations between the two parties are
ended, but the marriage is not.
• In a legal separation, the property regime is separated and
severs matrimonial obligations.
 WHAT IS A MENSA ET THORO?
• IT IS A LATIN PHRASE WHICH MEANS FROM “ TABLE AND
BED”, ALTHOUGH IT IS OFTEN TRANSLATED AS FROM BED
AND BOARD.
• IT IS ESSENTIALY A COURT- SANCTIONED SEPARATION,
MEANING THAT THE SPOUSES ARE LEGALLY LIVE APART,
BUT THEY ARE STILL LEGALLY MARRIED.
• THIS TYPE OF DIVORCE ALLOWS THE COUPLE TO LIVE APART
WITHOUT FEAR OF BEING TAKEN TO COURT
• Mensa et Thoro a mensa et thoro (not comparable)
(historical, law, of a divorce) That does not to dissolve
the marriage bond, but merely authorizes the husband
and wife to live apart from each other
 WHEN AND WHEN MAY PETITION
FOR LEGAL SEPARATION FILLED?

• A PETITION FOR LEGAL SEPARATION MAY BE FILED

ONLY BY THE HUSBAND AND WIFE.
• IT SHALL BE WITHIN FIVE YEARS FROM THE TIME OF
THE OCCURRENCE OF ANY GROUNDS FOR LEGAL
SEPARATION.
 STEPS ON HOW TO FILE FOR A PETITION FOR LEGAL SEPARATION IN THE PHILIPPINES

• STEP 1: Look for a lawyer.  A family lawyer is recommended. Talk to the lawyer about your
circumstances and that you want to a Legal Separation with your spouse. Note that the
husband or wife can only file for the petition, in-laws and children can’t
• STEP 2: The lawyer will make a petition on your behalf and file in the court.
• STEP 3: After 6 months from filing, you can be tried. This is a cooling period where you
and your spouse may reconcile. You should need to take steps, but in case it’s impossible to
get back together, a decree is issued
 STEPS ON HOW TO FILE FOR A PETITION FOR LEGAL SEPARATION IN THE PHILIPPINES

• STEP 4: The court will issue summon for the respondent. The respondent needs to answer
the summons 15 days after s/he received the order.
• STEP 5: Go to the court for pre-trial proceedings. You should attend with your lawyer so
that the case would not be dismissed. In case you are unable to go there due to an urgent
matter, you can let your lawyer go to the court.
• STEP 6: Go on a trial. Prepare your evidence, witnesses, etc. your lawyer will help you
along the way. The evidence and witnesses must help you in your legal separation by
proving the grounds. For example, if your ground is sexual infidelity, you may show text
messages, pictures, etc. of your spouse and the other party at the court.
• STEP 7: Wait for the verdict. It will take more than a year or two for the final judgment. So
you need to be patient.

• Getting a legal separation is not easy, but it’s a step closer to “being free.” However, you
should note that you can’t marry another person if you are legally separated, only if your
marriage is annulled, you can do so. If you have more questions on how to file a petition for
legal separation, it’s better to consult a lawyer.
 TEN 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 AFFLIATION.
3. ATTEMPT OF RESPONDENT TO CORRUPT OR INDUCE THE PETITIONER,
A COMMON CHILD, OR A CHILD OF THE PETITIONER, TO ENGAGE IN A
PROSTITUTION, OR CONNIVANCE IN SUCH CORRUPTION OR
INDUCEMENT
4. FINAL JUDGEMENT SENTENCING THE RESPONDENT TO
IMPRISONMENT OF MORE THAN SIX YEARS, IF PARDONED.
 TEN GROUNDS FOR LEGAL
SEPARATION
• 5. DRUG ADDICITION OR HABITUAL ALCOHOLISM OF
THE RESPONDENT
• 6. LESBIANISM OR HOMOSEXUALITY OF THE
RESPONDENT.
• 7. CONTRACTING BY THE RESPONDENT OF A
SUBSEQUENT BIGAMOUS MARRIAGE, WHETHER IN
THE PHILIPPINES OR ABROAD.
 TEN GROUNDS FOR LEGAL
SEPARATION
8. SEXUAL INFIDELITY OR PERVESION
9. ATTEMPT BY THE RESPONDENT AGAINST LIFE
OF THE PETITIONER; OR
10. ABANDONMENT OF PETITIONER BY
RESPONDENT WITHOUT JUSTIFIABLE CAUSE
FOR MORE THAN ONE YEAR.
 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 SEVERE
 THE DECREE OF LEGAL SEPARATION
SHALL HAVE THE FOLLOWING EFFECTS

• 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 OF ARTICLE 43 OF THE FAMILY CODE
• Article 43 paragraph 2 of the Family Code of the Philippines states that
“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 or, if there are none, the
children of the guilty spouse by a previous marriage or in default of
children, the innocent spouse”
 THE DECREE OF LEGAL SEPARATION
SHALL HAVE THE FOLLOWING EFFECTS

3. The custody of the minor children shall be

awarded to the innocent spouse, subject to the
provisions of Article 213 of this Code; and
• Article 213 of the Family Code, children under 7 years
of age are under the parental authority of their mothers.
This rule extends to illegitimate children. The mother,
however, can lose her custody rights and parental
authority if she is deemed by the state unfit to raise her
child
 THE DECREE OF LEGAL SEPARATION
SHALL HAVE THE FOLLOWING EFFECTS
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.
• MOVIES ABOUT LEGAL SEPARATION
1. THE PARENT TRAP
• The film essentially covers the topic of how parents can often have the wrong idea of what’s
best for their children when going through a divorce. In this case, the parents mistakenly
believed it was best to separate the children, leaving them without a sibling.
• The film also shows how many children of separated parents yearn for their parents to
reunite.
• This is a film which clearly shows that sometimes adults can underestimate the strength of
sibling attachments
• MARRIAGE STORY
They have lost this emotional connection. Nicole rejects mediation because she has lost hope
and lost her sense of trust in Charlie and their relationship. She sees him as obsessed with his
career and almost indifferent to her needs and wants. She was also wounded his by having a
sexual fling.
 TRIVIAS ABOUT LEGAL
SEPARATION
FLORIDA DOESN’T RECOGNIZE LEGAL SEPARATION
• Florida is one of the few states that does not recognize legal separation.
Only five other states do not recognize this either. In all other 46 states,
married couples can file for a legal separation. In doing so, they are
aided in making agreements on issues like child custody, child support.
There is no law in the state of Florida, however, that defines legal
separation.
• SEPARATION IS NOT THE ONLY OPTION
Although legal separation is not recognized in Florida, it is still
possible to reach agreements regarding child support and other
related matters without getting a divorce. The couple would still
remain legally married but can still achieve separation by
obtaining a court order.
 OTHER TYPES OF SEPARATION
• Trial Separation
• If you and your spouse need a break from the relationship, one option is to live apart while
deciding whether to divorce—a "trial separation." Legally, not much changes during a trial
separation—all marital property laws still apply. For example, a court will treat the money
you earn and the things you buy during the trial separation as property acquired by a married
person. That will often mean that the property is jointly owned by you and your spouse
(depending on your state's rules about property ownership).
 ELEMENTS OF TRIAL SEPARATION
• whether you'll continue to share a joint bank account or credit cards
• how you'll budget your spending
• who will stay in the family home
• how you'll share expenses, and
• if you have kids, how and when each of you will spend time with them.
 PERMANENT SEPARATION
• When you live apart from your spouse without any intention to reconcile, but you are not
divorced, the law considers you permanently separated.

• How Permanent Separation Affects Your Rights

Depending on the law where you live, a permanent separation can change property rights
between spouses. For example, in some states, assets and debts acquired during a permanent
separation belong only to the spouse who acquires them. Once you are permanently separated,
each spouse becomes solely responsible for any debts they take on. Similarly, spouses who are
permanently separated are no longer entitled to any share of property or income acquired by
the other.
 DIFFERENCE BETWEEN DIVORCE
AND SEPARATION
• In simple terms, the difference between a separation and a divorce is that the separation
leaves the marriage intact while a divorce ends it. A couple may opt for a separation because
they are easier to reverse than a divorce. When a couple is separated, all they need to do is
get back together and ask the court to revoke the separation decree to end the separation.
They don’t need to re-marry as they would if they were divorced.

• When you separate, you can often retain your spouse’s health care benefits. You lose these if
you are divorced. However, this can vary based on benefits plans and should be carefully
reviewed before deciding to separate.
 LEGAL SEPARATION VS. DIVORCE: SIMILARITIES

• Both a separation and a divorce allow each party the space to

live their lives independently. While a divorce formally severs
the ties between the couple, a separation agreement often
becomes the outline for a divorce decree. It determines how
assets and debts are divorced, allowing each party to move on,
date other people, make independent investments in most cases
and not be beholden to their spouse
 EFFECTS OF FILLING OF PETITION FOR LEGAL SEPARATION

• 1. THE SPOUSE 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 A SEXUAL

INTERCOURSE WITH HIS WIFE AND IF HE FORCES UPON HER,
HE CAN BE CHARGED CRIMINALLY.
• 3. THE COURT SHALL DESIGNATE THE HUSBAND OF THE
WIFE TO MANAGE THE ABSOLUTE COMMUNITY OR
CONJUGAL PARTNERSHIP PROPERTY IN THE ABSENCE OF
AGREEMENT BETWEEN SPOUSES.

• 4. THE COURT OF MAY DESIGNATE A THIRD PERSON TO

ADMINSTER THE PROPERTIES OF THE SPOUSES.
 WHAT ARE THE INSTANCES WHEREIN THE COURT
SHOULD DENY THE PETITION?
• The court shall deny the petition on any of the following grounds:
• The aggrieved party has condoned the offense or act complained of or has consented to the
commission of the offense or act complained of;
• There is connivance in the commission of the offense-or act constituting the ground for legal
separation;
• Both parties have given ground for legal separation;
• There is collusion between the parties to obtain the decree of legal separation; or
• The action is barred by prescription.
 DIVORCE
DIVORCE OF DISSOLUTION OF MARRIAGE IS THE FINAL TERMINATION OF A
MARRIAGE, CANCELLING 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 SPOUSAL 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.
 Divorce is the process of terminating a
marriage or marital union. Divorce usually
entails the canceling or reorganizing of the
legal duties and responsibilities of marriage,
thus dissolving the bonds of matrimony
between a married couple under the rule of
law of the particular country or state
 TYPES OF DIVORCE
• 1. NO FAULT DIVORCE
- THE DISSOLUTION OF MARRIAGE DOES NOT
REQUIRE AN ALLEGATION OR PROOF OF FAULT OF
EITHER PARTY. THE APPLICATION CAN BE MADE
EITHER PARTY OR BY BOTH. THE SAME HOLDS TRUE
FOR CANADA AND GERMANY.
 NO FAULT DIVORCE
• In a "no-fault" divorce, neither spouse has to prove that the
other spouse did something wrong to cause the breakup. It does
not require an allegation or proof of fault of either party. It may
be made by either party or by both. The spouses don't need to
prove marital misconduct for the court to grant the divorce.
• AT FAULT DIVORCE

- IN 1975, COUNTRIES WHICH PERMITTED DIVORCE ALSO

REQUIRED PROOF BY ONE PARTY THAT THE OTHER ONE
COMMITTED AN ACT INCOMPATIBLE TO THE MARRIAGE. THIS
WAS TERMED GROUNDS FOR DIVORCE OR PROPERLY CALLED
FAULT AND WAS THE ONLY WAY TO TERMINATE MARRIAGE.
MOST JURISDICTIONS AROUND THE WORLD STILL REQUIRE
SUCH PROOF OF FAULT.
• In this type of divorce, at least one spouse alleges and proves
that the other spouse's bad behavior led to the end of the
marriage. It required proof by one party that the other had
committed an act incompatible to the marriage

• This was termed grounds for divorce and was the only way to
terminate a marriage.
• Grounds that is acceptable for filing Fault Divorce could be one of the following:
•Adultery
•Abandonment for a certain length of time
•Prison confinement
•Physical inability to have sexual intercourse, if this condition existed before the marriage and
was hidden
•The other spouse has inflicted emotional or physical pain (cruelty)
• SUMMARY DIVORCE

It is also known as a summary dissolution of marriage, it may be

a practical option for couples with minimal assets, no children
and no desire for spousal support as part of the final settlement.
It is used when spouses meet certain eligibility requirements or
can agree on key issues beforehand.
Key Factors of Eligibility for Summary Divorce:
• Short Marriage
• No Children
• Minimal or no real property
• Marital Property is under a threshold
• Each spouse's personal property is under a threshold
UNCONSTESTED DIVORCE
- TWO PARTIES COME TO AN AGREEMENT ABOUT THE PROPERTY,
CHILDREN AND SUPPORT ISSUES. WHEN THE PARTIES CAN AGREE AND
PRESENT THE COURT WITH 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 CUSTODY OF
THEIR CHILDREN.
• COLLABORATIVE DIVORCE-
IT IS BECOMING A POPULAR METHOD FOR DIVORCING
COUPLES TO COME TO AGREEMENT ON DIVORCE ISSUES. THE
PARTIES NEGOTIATE AN AGREED RESOLUTION WITH THE
ASSISTANCE OF THE ATTORNEYS WHO ARE TRAINED IN THE
COLLABORATIVE DIVORCE PROCESS AND MEDIATION AND
OFTEN WITH THE ASSISTANCE OF A NEUTRAL FINANCIAL
SPECIALIST AND/ OR DIVORCE COACH.
• MEDIATED DIVORCE
- IT IS AN ALTERNATIVE TO TRADITIONAL DIVORCE
LIGITATION. A MEDIATOR FACILITIES THE DISCUSSION
BETWEEN THE HUSBAND AND WIFE BY ASSISTING WITH
COMMUNICATION AND PROVIDING INFORMATION AND
SUGGESTIONS TO HELP RESOLVE DIFFERENCES. AT THE END
OF THE MEDIATION PROCESS, THE SEPARATING PARTIES HAVE
TYPICALLY DEVELOPED A TAILORED DIVORCE AGREEMENT
THAT CAN BE SUBMITTED TO THE COURT.