LEGAL SEPARATION

UNDER THE FAMILY CODE

Grounds for Legal Separation (Art. 55)
(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.
Physical Violence under R.A. No. 9262
SECTION 19. Legal Separation Cases. In cases of legal
separation, where violence as specified in this Act is
alleged, Article 58 of the Family Code shall not apply.
The court shall proceed on the main case and other
incidents of the case as soon as possible. The hearing
on any application for a protection order filed by the
petitioner must be conducted within the mandatory
period specified in this Act.
Physical Violence under R.A. No. 9262
Sec. 3 (a) "Violence against women and their children"
refers to any act or a series of acts committed by any
person against a woman who is his wife, former wife,
or against a woman with whom the person has or had
a sexual or dating relationship, or with whom he has a
common child, or against her child whether legitimate
or illegitimate, within or without the family abode,
which result in or is likely to result in physical, sexual,
psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault,
coercion, harassment or arbitrary deprivation of
liberty.
(8) Sexual Infidelity or perversion
GOTIA v. CAMPOS-RUEDA (1916) wife was asked to
perform unchaste & lascivious acts on genitals of
husband
PEOPLE v. ZAPANTA (1951) wife pled guilty to
adultery; she was again charged for adultery; court
said that each act is adultery
GANDIONCO v. PENARANDA (1987) legal separation
(civil case) can proceed independently of concubinage
(criminal case)
KALAW v. FERNANDEZ (2011) there is ground for
legal separation (infidelity) but not for psychological
incapacity
Who can ask for legal separation
Under Article 55, the innocent spouse.

When may petition be filed
Art. 57. An action for legal separation shall be filed
within five years from the time of the occurrence of
the cause. (102)
When may petition be filed
LAPUZ v. EUFEMIO (1972) action for legal separation
is purely personal; death of one party causes the death
of the action itself
MATUBIS v. PRAXEDES (1960) husband cohabited
with another woman and wife came to know about
this; she filed legal separation case 15 months later,
case was filed out of time.
Court procedure in legal separation
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)
Cases:
ARANETA v. CONCEPCION (1956) determination of
custody and support pendente lite during the six-
month cooling off period is allowed.
OCAMPO v. FLORENCIANO (1960) husband filed case
for legal separation on ground of wifes adultery; wife
admitted to fiscal during collusion hearing that she is
indeed guilty of adultery; not indication of collusion or
confession of judgment
LAPUZ v. EUFEMIO (1972) husband died before
decision on legal separation was resolved, right to
dissolution of the conjugal partnership of gains also
extinguished (property rights are mere effects of the
decree of separation
SAMOSA v. VAMENTA (1972) wife filed for legal
separation on ground of attempt on her life and for
concubinage; court may appoint administrator for her
paraphernal property even during the six-month
cooling off period
PACETE v. CARIAGA (1994) respondent failed to file
an Answer and was declared in default; case should
have been referred to the fiscal for determination of
collusion; cannot be based on stipulation of facts or
confession of judgment (Art. 60).
Effect of pendency of the petition
DE LA VINA v. VILLAREAL (1920) an action for divorce
brought by the wife against the husband, in which the
partition of the conjugal property is also prayed for,
the wife may obtain a preliminary injunction against
the husband, prohibiting him from alienating or
encumbering any part of the conjugal property during
pendency of the action.
SABALONES v. CA (1994) in legal separation cases,
while the court has not appointed an administrator of
the entire conjugal assets, court is justified in allowing
wife to continue her administration
Support & Custody pendente lite
YANGCO v. RHODE (1902) where the answer to a
complaint alleging marriage and praying for divorce
denied the fact of marriage, the court exceeds its
jurisdiction in granting alimony. The right of the wife to
support depends upon her status as such and where
the existence of the status is put in issue by the
pleading it cannot be presumed to exist for the
purpose of granting alimony.
Support & Custody pendente lite
ARANETA v. CONCEPCION (1956) determination of
custody and alimony should be given effect and force
provided it does not go to the extent of violating the
policy of the cooling off period. That is, evidence not
affecting the cause of the separation like the actual
custody of the children, the means conducive to their
welfare and convenience during the pendency of the
case, these should be allowed that the court may
determine which is best for their custody.
Support & Custody pendente lite
RAMOS v. VAMENTA (1972) The husband, accused of
concubinage and attempt against the life of the wife
would continue in the management of her paraphernal
property if the judge does not allow the preliminary
mandatory injunction during the cooling off period.
LERMA v. CA (1974) Husband filed adultery case.
Wife countered by filing legal separation, custody of
children and support pendente lite. A petition in bad
faith, such as that filed by one who is herself guilty of
an act which constitutes a ground for legal separation
at the instance of the other spouse, cannot be
considered as within the intendment of the law
granting separate support.
Defenses in actions for legal separation
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;
Defenses in action 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)
(a) Consent
MATUBIS v. PRAXEDES (1960) parties executed an
agreement that they will not prosecute for adultery or
concubinage; husband cohabited with another woman
and wife came to know about this; she filed legal
separation. There is condonation and consent in
writing (agreement).
PEOPLE v. SANSANO (1933) Husband filed for divorce
but was denied because by his actions he consented to
his wifes adulterous relations.
(b) Condonation
BUGAYONG v. GINEZ (1956) after learning of wifes
adultery, husband had sexual intercourse with her.
Court denied the divorce saying that a single voluntary
act of marital intercourse is sufficient to constitute
condonation.
(c) Recrimination
BROWN v. YAMBAO (1957) wife was impregnated by
another man. They separated and liquidated conjugal
partnership. He filed for legal separation but this was
denied because he himself cohabited with another
woman and had children with her and because he filed
the case 10 years after learning of his wifes adultery.
ONG ENG KIAM v. ONG (2006) wife was being
maltreated by husband so she filed for legal separation
(repeated physical violence and grossly abusive
conduct). Husband sought nullification saying wife
abandoned her and so she is barred from filing a case
for legal separation. Court said that abusive conduct of
husband is justifiable cause for abandonment.
(d) Collusion/Mutual Consent
BROWN v. YAMBAO (1957) wife was impregnated by
another man. They separated and liquidated conjugal
partnership. He filed for legal separation but this was
denied because he himself cohabited with another
woman and had children with her and because he filed
the case 10 years after learning of his wifes adultery.
OCAMPO v. FLORENCIANO (1960) wife had illicit
relations with different men. Husband filed for legal
separation and she agreed as long as she is not
charged with adultery. She did not file an Answer but
admitted guilt before the fiscal during collusion
hearing. This is not a confession of judgment because it
was not given in court. Husband also presented
evidence independent of wifes testimony to prove the
adultery, legal separation action will prosper.
Effect of decree of legal separation
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)
Cases:
MATUTE v. MACADAEG (1956) husband is legally
separated from wife cause of adultery with husbands
brother. Custody of children was granted to husband.
Wife brought children to Manila with consent of
husband but refused to return them saying they prefer
to stay with her. Custody of children is never final and
subject to review for the best interest of the children.
However, until the decision is modified, the custody is
to the father. Besides, wife is not capable of supporting
the children.
LAPERAL v. REPUBLIC (1962) wife who obtained legal
separation cannot revert to using her maiden name
besides the conjugal partnership had already been
dissolved.
Reconciliation
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)
Reconciliation
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 ordering 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)