5. Legal Separation

6. Legal Separation

a. Grounds b. Defenses c. Legal Consequences of Legal Separation d. Effects of Reconciliation

J. Legal Separation (Family Code, art. 55-67)

Exclude: A.M. No. 02-11-11-SC

> Art. 55. A petition for legal separation may be filed on any of the following grounds:

(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;

(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.

For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a)

Art. 56. The petition for legal separation shall be denied 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) Where the action is barred by prescription. (100a)

Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102)

Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (103)

Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n)

Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.

In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (101a)

Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other.

The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. (104a)

Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. (105a)

Art. 63. 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 of Article 43(2);

(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

(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. (106a)

Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured.

The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation become final. (107a)

Art. 65. 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. (n)

Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences:

(1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and

(2) The final decree of legal separation shall be set aside, 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's order containing the foregoing shall be recorded in the proper civil registries. (108a)

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 filed 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 measure 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)

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 is personal to the spouses and does not sever the marriage bond. A decree also has the property, custody, and succession effects specified in Article 63 of the Family Code. The Civil Code recognizes this:

• By allowing only the innocent spouse and no one else to claim legal separation;
• By providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already granted. (Lapuz v. Eufemio, G.R. No. L-31429, January 31, 1972)

GROUNDS FOR LEGAL SEPARATION (FC, ART. 55)

• Repeated physical violence or grossly abusive conduct against petitioner, common child, child of petitioner;

NOTE: Respondent’s child is not included

• Attempt to corrupt or induce petitioner, common child, child of petitioner to engage in prostitution, or connivance in such corruption or inducement;
• Attempt by respondent against the life of petitioner;
• Final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned;

NOTE: The final judgment must be promulgated during the marriage.

• Drug addiction or habitual alcoholism of respondent;

NOTE: It must exist after celebration of marriage

• Physical violence or moral pressure to compel petitioner to change religious or political affiliation;
• Bigamous marriage subsequently contracted by respondent in the Philippines or abroad;
• Sexual infidelity or perversion;

NOTE: Sexual perversion includes all unusual or abnormal sexual practices which may be offensive to the feelings or sense of decency of either the husband or wife.

• Lesbianism or homosexuality of respondent; and

NOTE: It must exist after celebration of marriage

• Abandonment of petitioner by respondent without justifiable cause for more than 1 year.

Q: If a man commits several acts of sexual infidelity, particularly in 2002, 2003, 2004, 2005, does the prescriptive period to file for legal separation run from 2002? (2007 BAR)

A: The prescriptive period begins to run upon the commission of each act of infidelity. Every act of sexual infidelity committed by the man is a ground for legal separation.

Q: Lucita left the conjugal dwelling and filed a petition for legal separation due to the physical violence, threats, intimidation, and grossly abusive conduct she had suffered at the hands of Ron, her husband. Ron denied such and claimed that since it was Lucita who had left the conjugal abode, then the decree of legal separation should not be granted, following Art. 56 par. 4 of the FC which provides that legal separation shall be denied when both parties have given ground for legal separation. Should legal separation be denied on the basis of Ron’s claim of mutual guilt?

A: NO. Art. 56 par. 4 of the FC does not apply since the abandonment that is a ground for legal separation is abandonment without justifiable cause for more than one year. In this case, Lucita left Ron due to his abusive conduct. Such act does not constitute the abandonment contemplated in the said provision. Therefore, there is no mutual guilt between them as there is only one erring spouse. (Ong Eng Kiam v. CA, G.R No. 153206, October 23, 2006)

NOTE: No criminal conviction is necessary to issue a decree of legal separation. In legal separation, preponderance of evidence is enough. (Gandionco v. Peñaranda, G.R. No. L-79284, November 27, 1987) Verify the G.R. number’s L- prefix.

What are the defenses against a petition for legal separation?

The following cannot be compromised:

• Civil status of persons;
• Validity of a marriage or legal separation;
• Any ground for legal separation;
• Future support;
• Jurisdiction of courts; and
• Future legitime. (NCC, Art. 2035)

NOTE: A sister-in-law or a brother-in-law is not covered by these two provisions. Being an exception to the general rule, Art. 150 of the Family Code must be strictly construed. (Gayon v. Gayon, G.R. No. L-28394, November 26, 1970)

Grounds for denial of petition for legal separation

• Condonation of the act complained of;
• Consent to the commission of the offense/act;
• Connivance in the commission of the act;
• Collusion in the procurement of decree of legal separation;
• Mutual Guilt;
• Prescription: 5 yrs from occurrence of cause;
• Death of either party during the pendency of the case (Lapuz-Sy v. Eufemio, G.R. No. L31429, January 31, 1972);
• Reconciliation of the spouses during the pendency of the case. (FC, Art. 56)

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)

Legal Separation

• There should be no condonation or consent to the drug addiction;
• The action must be filed within five (5) years from the occurrence of the cause;
• Drug addiction arises during the marriage and not at the time of marriage.

Q: If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, would these constitute grounds for a declaration of nullity or for legal separation, or would they render the marriage void?

A: If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur during the marriage, they will:

• Not constitute grounds for declaration of nullity (FC, Art. 35)
• Not constitute grounds to render the marriage voidable (FC, Art. 45 and 46); and
• Constitute grounds for legal separation. (FC, Art. 55)

VITIATED CONSENT

Failure to interpose prescription as a defense

When prescription was not interposed as a defense, the courts can take cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage, involve public interest and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record.

Prescription may be considered even if not pleaded when it appears from the pleadings or evidence on record, consistent with Rule 9, Section 1 of the Rules of Civil Procedure, as amended in 2019. (Brown v. Yambao, G.R. No. L- 10699, October 18, 1957)

Q: Rosa and Ariel were married in the Catholic Church of Tarlac, Tarlac on January 5, 1988. In 1990, Ariel went to Saudi Arabia to work. There, after being converted into Islam, Ariel married Mystica. Rosa learned of the second marriage of Ariel on January 1, 1992 when Ariel returned to the Philippines with Mystica. Rosa filed an action for legal separation on February 5, 1994.

a. Does Rosa have legal grounds to ask for legal separation?

b. Has the action prescribed?

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)

GR: 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.

XPN: 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 FILING A PETITION FOR LEGAL SEPARATION (FC, ART. 61)

The spouses shall be entitled to live separately from each other. In the absence of a written agreement between the parties, the court shall designate either the husband or the wife or a 3rd person to administer the absolute community or conjugal partnership property.

Void Compromise

No compromise upon the following questions shall be valid:

• The civil status of persons;
• The validity of a marriage or a legal separation;
• Any ground for legal separation;
• Future support;
• The jurisdiction of courts;
• Future legitime.

The prohibitions in Articles 1490 and 1491 also apply to sales in legal redemption, compromises and renunciations. [Art. 1492, CC]

The husband and the wife cannot sell property to each other, except:

• When a separation of property was agreed upon in the marriage settlements; or
• When there has been a judicial separation of property under the applicable Family Code provisions. [Art. 1490, CC; Arts. 134–142, Family Code]

The following persons cannot acquire by purchase, even at a public or judicial auction, either in person or through the mediation of another:

• The guardian, the property of the person or persons who may be under his guardianship;
• Agents, the property whose administration or sale may have been intrusted to them, unless the consent of the principal has been given;
• Executors and administrators, the property of the estate under administration;
• Public officers and employees, the property of the State or of any subdivision thereof, or of any government-owned or controlled corporation, or institution, the administration of which has been intrusted to them; this provision shall apply to judges and government experts who, in any manner whatsoever, take part in the sale;
• Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession;
• Any others specially disqualified by law. [Art. 1491, CC]

Effect of death of a party after entry of judgment

If the party dies after the entry of judgment, the same shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts. (Sec. 21, A.M. 02-11- 11-SC)

Q: May the heirs of the deceased spouse continue the suit (petition for decree of legal separation) if the death of the spouse takes place during the pendency of the suit?

A: NO. An action for legal separation is purely personal, therefore, the death of one party to the action causes the death of the action itself – action personalis moritur cum persona.

NOTE: If a spouse dies during a pending action for legal separation, the action ends and the deceased spouse’s heirs cannot continue it. If a spouse dies after entry of judgment, the judgment binds the parties and their successors in interest in the settlement of the estate.

Validity of Marriage or Legal Separation and any of its Grounds

GR: Parties cannot compromise on the validity of marriage or legal separation, the validity of which is governed by the provisions of the Family Code.

EFFECTS OF LEGAL SEPARATION

• Spouses entitled to live separately but the marriage bond is not severed;
• ACP/CPG shall be dissolved and liquidated. The share of the offending spouse in the net profits shall be forfeited in favor of:

Common children,

• In default of the common children, children of the guilty spouse by a previous marriage,
• In default of common children and the children of the guilty spouse, innocent spouse;
• Custody of minor children is awarded to the innocent spouse (subject to FC, Art. 213);
• Offending spouse is disqualified to inherit from innocent spouse by intestate succession;
• Provisions in the will of innocent spouse which favors offending spouse shall be revoked by operation of law;
• 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

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

Q: In case an action for legal separation is granted, what will happen to a child below the age of seven? Is the rule absolute?

A. As a rule, the custody of the child shall be awarded to the innocent spouse, except if the child is below the age of seven where the law says that the child cannot be separated from the mother, except if there is a compelling reason to do so. The common-law relationship of a child's mother with a married man is a ground to separate the child from the mother, because such a situation will not afford the child a desirable atmosphere where he can grow and develop into an upright and moral-minded person. (Cervantes v. Fajardo, G.R. No. 79955, January 27, 1989)

Q: Which of the following remedies:

• Declaration of nullity of marriage;
• Annulment of marriage;
• Legal separation; and/or
• Separation of property.

can an aggrieved spouse avail himself/herself of:

• If the wife discovers after the marriage that her husband has “AIDS”?
• If the wife goes abroad to work as a nurse and refuses to come home after the expiration of her three-year contract there?
• If the husband discovers after the marriage that his wife has been a prostitute before they got married?
• If the husband has a serious affair with his secretary and refuses to stop notwithstanding advice from relatives and friends?
• If the husband beats up his wife every time he comes home drunk?

A.

• Annulment of Marriage. Since AIDS is a serious and incurable sexually transmissible disease, the wife may file an action for annulment of the marriage on this ground whether such fact was concealed or not from the wife, provided that the disease was present at the time of the marriage. The marriage is voidable even though the husband was not aware that he had the disease at the time of marriage.
• Separation of Property. Expiration of the wife's contract alone does not establish abandonment. If she leaves the conjugal dwelling without intention of returning, the husband may file an action for judicial separation of property. If she has left the conjugal dwelling for three months or has failed within that period to give any information as to her whereabouts, she is prima facie presumed to have no intention of returning. If the refusal continues for more than one year from the expiration of her contract, the husband may file the action for legal separation under Art. 55, par. 10 of the FC on the ground of abandonment of petitioner by respondent without justifiable cause for more than one year. The wife is deemed to have abandoned the husband when she leaves the conjugal dwelling without any intention of returning. (FC, Art. 101) The intention not to return cannot be presumed during the 3-year period of her contract.
• None on this ground. The wife's having been a prostitute before the marriage, even if concealed, is not among the grounds for annulment by fraud enumerated in the Family Code. No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud. (FC, Art. 46)
• Legal Separation. The wife may file an action for legal separation. The husband’s sexual infidelity is a ground for legal separation. (FC, Art. 55)She may also file an action for judicial separation of property for failure of her husband to comply with his marital duty of fidelity. [FC, Art. 135(4), Art. 101
• Legal Separation and Separation of Property. The wife may file an action for legal separation on the ground of repeated physical violence on her person. [FC, Art. 55(1)]She may also file an action for judicial separation of property for failure of the husband to comply with his marital duty of mutual respect. [FC, Art. 135(4), Art. 101]She may also file an action for declaration of nullity of the marriage if the husband’s behavior constitutes psychological incapacity existing at the time of the celebration of marriage.

EFFECTS OF RECONCILIATION

• As to the Decree During the pendency of the case: the proceedings must be terminated at whatever stage. After the issuance of the decree: final decree of legal separation should be set aside. (FC, Art. 66)
• As to the property regime

GR: 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)

XPN: 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 LS. 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.

Pendency of Action

During the pendency of the action for annulment, declaration of absolute nullity of marriage or legal separation, the Court shall, in the absence of adequate written agreement between the spouses, provide for the:

• Support of the spouse;
• Support and custody of the common children; and
• Visitation rights of the other parent. (Art. 49, FC)

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.

Abandonment

If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for:

• Receivership;
• Judicial separation of property;
• Authority to be the sole administrator of the absolute community. (FC, Art. 101)