9. Legal Separation
17 of the
Concept; A Vinculo Matrimonii and A Mensa Et Thoro;
Legal Separation distinguish from Separation de facto and
Separation of Property
Two Kinds of Divorces
(a) Absolute divorce (divorce a vinculo matrimonii) —
Marriage is dissolved.
[NOTE: Under Act 2710, there were two grounds.]
(b) Relative divorce or LEGAL SEPARATION (divorce a mensa
et thoro) — Marriage is NOT dissolved; here, the parties are
merely separated from bed and board.
[NOTE: Under the Civil Code, there are three (3) grounds.
Under the Family Code, there are ten (10) grounds.]
Legal Separation
(a) Must be done thru the court.
[NOTE: An extrajudicial agreement to separate is VOID.
(Art. 221, No. 1, Civil Code).].
(b) Always involves also separation of property.
(c) May be considered, in a sense, as a cause of separation
of property.
(d) The spouse persons are necessarily separated.
Separation of Property
(a) 1) If one prior to marriage — may be done thru the
marriage settlement.
2) If done during the existence of the marriage — must be
done thru the courts.
(b) May exist with or without legal separations.
(c) May be considered, in a sense as one of the effects of
legal separation (Art. 63, Family Code). (Of course,
separation of property may exist without a legal separation.)
(d) The spouses persons are NOT necessarily separated.
a. Grounds, Art. 55 (1) to (10), Art. 101 and 128, FC; Art.
247, 333 and 334, Revised Penal Code
Art. 55. A petition for legal separation may be fi led 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 affi liation;
(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 infi delity 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. (97a)
Increase in the Number of Grounds
While in the Civil Code, there were only three grounds for
legal separation, there are ten grounds enumerated in the
Family Code.
Proof Needed
Mere preponderance of evidence, not guilt beyond
reasonable doubt, will suffice to prove the existence of any
of the grounds, although in ground No. 4, previous criminal
conviction is essential (this is a separate case) in view of
the necessity of a “final judgment.”
Pastor B. Tenchavez v. Vicenta F. Escaño L-19671, Nov.
29, 1965
(a) a foreign divorce between Filipino citizens sought and
decreed after the effectivity of the new Civil Code is not
entitled to recognition (as valid) in our country;
(b) neither is the marriage contracted with another party by
the “divorced’’ consort, subsequent to the foreign decree of
divorce, entitled to validity in this jurisdiction;
(c) the remarriage of the “divorced” wife and her
cohabitation with her new “husband” entitles her lawful
husband to a decree of legal separation;
(d) the desertion by one consort entitles the other to
recover moral damages;
(e) an action for alienation of affections against the parents
of one consort will not prosper in the absence of proof of
malice and unworthy motives on the part of said parents;
(f) the original marriage subsists despite the foreign
divorce;
(g) to grant effectivity to foreign divorces would be a patent
violation of the declared public policy of the State,
especially so because of the 3rd paragraph of Art.
Civil Code; and
(h) to give preference to a second (but illegal) marriage
simply because it appears to be more solid and blessed
with children will do away with the concept of marriage as a
social institution.
Effect of the Institution of a Criminal Action
If a wife sues for legal separation on the ground of
concubinage, and during the pendency of said suit, she fi
les a criminal charge for concubinage, the civil action
should be SUSPENDED until after fi nal judgment is
rendered in the criminal
case (Sec. 3[b], Rule 111, Revised Rules of Court)
inasmuch as her cause of action in the case for legal
separation arises from the very crime of concubinage
charged in the criminal case. (Jerusalem v. Zurbano, et al.,
L-11935, Apr. 24, 1959).
This is a question of decision since the offense now need
not be proved in a criminal case.
Duty of Court to Try to Effect a Reconciliation
In every case, the court must take steps, before granting
the legal separation, toward the reconciliation of the
spouses, and must be fully satisfied that such reconciliation
is highly improbable. (Art. 98). It is the policy of the law to
discourage
legal separation (Juarez v. Turon, 51 Phil. 736) because
the family is a basic social institution which public policy
cherishes and protects. (Art. 216).
The Action Is Personal in Nature
Lapuz-Sy v. Eufemio 43 SCRA 177
An action for legal separation which involves nothing more
than bed-and-board separation of the spouses is purely
personal. Being personal in character, it follows that the
death of one party to the action causes the death of the
action itself — actio personalia meritus cum persona.
Conviction Is Not Necessary Before Legal Separation May
Prosper
A decree of legal separation, on the ground of concubinage
(a form of sexual infi delity under Art. 55, no. 8 of the Family
Code) may issue upon proof by preponderance of evidence
in an action (for legal separation). Thus, no criminal
proceedings or conviction is necessary. (Gaudionco v. Hon.
Peñaranda, L72984, Nov. 27, 1987).

Ong Eng Kiam v. Ong, G.R. No. 15320, October 23, 2006
Gaudionco v. Penaranda, G.R. No. 79284, 27 November
1987
Prima Partosa-Jo v. Court of Appeals, G.R. No. 82606,
December 18, 1992
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
the decree of legal separation; or
(6) Where the action is barred by prescription. (100a)
b. Defenses, Art. 56, FC
Defenses in Legal Separation
(a) Condonation
(b) Consent
(c) Connivance
(d) Mutual guilt (recrimination)
(e) Collusion
(f) Prescription
i. Condonation/Pardon, Art. 56, par. 1, FC
Condonation
(a) This means forgiveness, express or implied. Sleeping
together after full knowledge of the offense is condonation.
(Bugayong v. Ginez, L-10033, Dec. 28, 1956).
(b) It comes AFTER, not before, the offense. (People v.
Schneckenburger, 73 Phil. 413).
(c) Implied condonation may come in the form of voluntary
sexual intercourse after knowledge of the cause (Johnston
v. Johnston, 116 Va. 778; Keezer, Marriage and Divorce, p.
554), unless the reason was to save the marital relationship
and maintain harmony (Keezer, Marriage and Divorce, p.
557) or for the purpose of attempting (unsuccessfully) a
reconciliation. (Hawkins v. Hawkins, 286, Pac.
747).
(d) Each sexual intercourse of the wife outside marriage is
a separate act of adultery. Therefore, condonation of one
act does not necessarily imply condonation of the others.
(People v. Zapata and Bondoc, L-3047, May 16, 1951).
(e) Where the wife left the conjugal home after her
adulterous acts were discovered, the fact that the husband
did not actively search for her is not condonation. It was not
the duty of the husband to search for the wife under the
circumstances. On the contrary, hers was the duty to return
to the conjugal home. (De Ocampo v. Florenciano, L-
13553, Feb. 23, 1960).
Forms
Arroyo v. Court of Appeals, G.R. No. 96602, November 19,
1991
Ginez v. Bugayong, G.R. No. L-10033, December 28, 1956
(En Banc)
People v. Zapata, G.R. No. L-3047, May 16, 1951 (En
Banc)
De Ocampo v. Florenciano, G.R. No. L-13553, February
23, 1960 (En Banc)
ii. Consent, Art. 56, par. 2, FC
Distinguished from Condonation; Forms
Consent
(a) This may be express or implied.
(b) Consent must be distinguished from entrapment.
Therefore, if the purpose is to merely catch the wife, this is
not consent even if the husband deliberately went away
only to come back and trap the wife.
(c) Of course, if a husband hires a detective to spy on his
wife, and tells him to have sexual intercourse with her in
order to have evidence, this will be a case of connivance.
The husband here is unworthy. (See Keezer, Marriage and
Divorce, pp. 550-551).
Matubis v. Praxedes, G.R. No. L-11766, October 25, 1960
People v. Schneckenburger, G.R. No. 48183, November
10, 1941(En Banc)
People v. Schneckenburger 73 Phil. 413
(This reverses the contrary rule in People v. Guinocud and
Tagayun, 58 Phil. 621).
FACTS: A husband and a wife entered into a mutual
agreement whereby each could live with others, have
carnal knowledge of them, without interference from the
other. Pursuant to the agreement, the husband lived with
another woman, and in the prosecution for concubinage, he
presented in defense the prior agreement or consent. Is he
guilty?
HELD: No, he is not guilty in view of the consent of the wife.
(1) We do not legalize the agreement; the agreement is still
null and void because it is contrary to the law
and contrary to morals. BUT precisely because the girl had
previously consented, she is now undeserving of our
sympathy. She deserves less consideration than a woman
who condones.
(2) It is alleged that when the law speaks of consent, what it
meant is condonation. This is not so; otherwise, why is
consent used as the alternative of condo-nation?
Consent is prior to the act; condonation comes after. (See
also Matubis v. Praxedes, L-11766, Oct. 25, 1960).
People v. Sensano, G.R. No. 37720, March 7, 1933 (En
Banc)
People v. Sansano and Ramos 59 Phil. 73
FACTS: A and B, husband and wife, respectively, were
legally married. Later, B abandoned A. B lived with C. A did
nothing to interfere with the relations of his wife and her
paramour. He even went to Hawaii, completely abandoning
his wife B for more than seven years. Later, A returned and
charged B and C with adultery. Is B guilty of adultery?
HELD: B should be acquitted because A’s conduct
warranted the inference that in truth, as well as in fact, he
had consented to the philandering of his wife.
iii. Connivance, Art. 56, par. 3, FC
Distinguished from Entrapment
iv. Recrimination/Mutual Guilt, Art. 56, par. 4, FC
Rationale
Mutual Guilt
Both parties being in pari delicto, there is no offended
spouse who deserves to bring the action. This is true even
if one of the parties has been pardoned but the other has
not. (Benedicto v. De la Rama, 3 Phil. 34). If there is no pari
delicto as when the husband can prove he did not allow the
wife to desecrate the home, the adulterous wife can be
charged for adultery. Incidentally, while consent comes
BEFORE the act, and condonation comes AFTER, to make
use of either, the same must be BEFORE the fi ling of the
complaint. (Arroyo v. Court of Appeals, 203 SCRA 150
[1991]).
Benedicto v. De La Rama, G.R. No. 1056, December 8,
1903

v. Collusion, Art. 56, par. 5 and Art. 60, par. 2, FC
How committed
Collusion
This is an agreement whereby one will pretend to have
committed the ground relied upon. (Keezer, Marriage and
Divorce, p. 546). A legal separation obtained thru collusion
is void. (See Art. 221, No. 3, Civil Code).
De Ocampo v. Florenciano, G.R. No. L-13553, February
23, 1960 (En Banc)
vi. Prescription, Art. 56, par. 6 and Art. 57, FC
Art 56. Effect of Death During Pendency: If one party dies
during the pendency of the case, the same should be
DISMISSED since the action is purely a personal one. This
is true even if there would have been effects on property
rights if a decree of legal separation had been granted.
Without the decree, there can be no effects. (Lapuz v.
Eufemio, 43 SCRA 179).
Art. 57. An action for legal separation shall be fi led within fi
ve years from the time of the occurrence of the cause.
(102a)
Non-necessity of Alleging Prescription
Although prescription should ordinarily be alleged, this is
not so in legal separation or annulment proceedings.
Therefore, the court even by itself can take cognizance of
prescription of the case because said action involves 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. (Brown v. Yambao, L-10699, Oct. 18, 1957).
Brown v. Yambao, G.R. No. L-10699, October 18, 1957
(102 Phil 168)
De Ocampo v. Florenciano, G.R. No. L-13553, February
23, 1960 (En Banc)
Contreras v. Macaraig, G.R. No. L-29138, May 29, 1970
c. Action for Legal Separation; A.M. No. 02-11-11-SC
i. Prescriptive Period
ii. Parties – who can file
iii. Procedure
Bañez v. Bañez, G.R. No. 132592, January 23, 2002
Lapuz Sy v. Eufemio, G.R. No. L-30977, January 31, 1972
(En Banc)
iv. Mandatory Cooling-Off Period, Art. 58, FC
Art. 58. An action for legal separation shall in no case be
tried before six months shall have elapsed since the fi ling
of the petition. (103a)
Rationale
Cooling-Off Period
Purpose of the six months period before trial is to enable
the parties to cool off (Pacete, et al. v. Hon. G. Carriaga,
Jr., et al., 49 SCAD 673, GR 53880, Mar. 17, 1994) for a
possible reconciliation. (Araneta v. Concepcion and Benitez
Araneta, L-9667, July 31, 1956).
Enrico L. Pacete v. Hon. Glicerio V. Carriaga, Jr. GR
53880, Mar. 17, 1994
49 SCAD 673
The special proscriptions on actions that can put the
integrity of marriage to possible jeopardy are compelled by
no less than the State’s interest in the marriage relation and
its avowed intention not to leave the matter within the
exclusive domain and the vagaries of the parties to alone
dictate.
No Suspension for Support Pendente Lite But the cooling-
off period does not mean the overruling of such other
provisions as custody, alimony, and support pendente lite
according to the circumstances. (Art. 105, Civil Code).
Therefore, even during said period of six months, support
pendente lite may be granted if justifi ed; otherwise rank
injustice may be caused. (Araneta v. Concepcion and
Benitez
Araneta, L-9667, July 31, 1956, 52 O.G. 5165). Similarly, a
writ of preliminary mandatory injunction for the return of the
wife’s paraphernal property can in the meantime be heard
and granted during the 6-month period. (Semosa-Ramos v.
Vamenta, 46 SCRA 110).
Araneta v. Concepcion, G.R. No. L-9667, July 31, 1956 (En
Banc), 99 Phil 709
Somosa-Ramos v. Vamenta, Jr., G.R. No. L-34132 July 29,
1972 (En Banc)
Pacete v. Carriaga, G.R. No. L-53880, March 17, 1994
v. Duty of the Court to Effect Reconciliation, Art. 59, FC
Art. 59. No legal separation may be decreed unless the
court has taken steps toward the reconciliation of the
spouses and is fully satisfi ed, despite such efforts, that
reconciliation is highly improbable. (n)
Steps to First Be Taken By the Court
The Court must have fi rst taken steps toward the
reconciliation of the spouses and be fully satisfied, despite
such efforts, that reconciliation is highly improbable, before
any legal separation may be decreed.
vi. Necessity of Trial and Intervention of State, Art. 60, FC
Art. 60. No decree of legal separation shall be based upon
stipulation of facts or a confession of judgment. In any
case, the court shall order the prosecuting attorney
or fi scal 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)
(1) Legal Separation Based on Stipulation of Facts or
Confession of Judgment
(a) The law requires proof, not a mere stipulation of facts or
a confession of judgment. Indeed, there ought to be a trial.
(Incidentally, Rule 19 of the Revised Rules of Court also
prohibits a judgment on the pleadings in actions for legal
separation or annulment of a marriage.)
(b) The proof may be either direct or circumstantial
evidence.
(c) Note that the case may prosper even if the defendant
does not appear.
May the court issue a decree of legal separation based
upon facts stipulated by the spouses? If so, why? If not,
why not? ANSWER: No, if the decree is based solely on the
stipulation of facts. (Art. 101, Civil Code). Yes, if there be
other evidence of the existence of a ground for legal
separation. (Ocampo v. Florenciano, L-13553, Feb. 23,
1960).
N.B.: Art. 60 has been culled from Art. 101 of the Civil Code
and which in turn has been taken from Art. 30 of the
California Civil Code. (Pacete v. Carriaga, GR 53880, 49
SCAD 673, Mar. 17, 1994).
Pacete v. Carriaga, G.R. No. L-53880, March 17, 1994
49 SCAD 673
Art. 101 of the Civil Code (now Art. 60, Family Code)
reflects the public policy on marriages. It should easily
explain the mandatory tenor of the law. The special
proscriptions on actions that can put the integrity of
marriage to possible jeopardy are impelled by no less than
the State’s interest in the marriage relation and its
avowed intention not to leave the matter within the
exclusive domain and the vagaries of the parties to alone
dictate.
vii. Legal Separation Pendente Lite, Art. 61-62 and Art. 49,
FC
Art. 61. After the fi ling 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)
(1) Note that the spouses can live separately after the fi
ling of the petition for legal separation. But they are not
required to do so.
(2) A third person may manage the property regime. The
designation of this person may be done by the court.
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)
(1) Note that as in the annulment or declaration of the
nullity of a marriage, Art. 49 shall likewise apply to support
and custody.
(2) Art. 49 provides: “During the pendency of the action and
in the absence of adequate provisions in a written
agreement between the spouses, the court shall provide for
the support of the spouses and the custody and support of
their common children. The court shall give paramount
consideration to the moral and
material welfare of said children and their choice of the
parent with whom they wish to remain as provided for in
Title IX. It shall also provide for appropriate visitation rights
of the other parent.’’
Sabalones v. Court of Appeals, G.R. No. 106169, February
14, 1994
Espiritu and Layug v. Court of Appeals, G.R. No. 115640,
March 15, 1995
Lapuz Sy v. Eufemio, G.R. No. L-30977, January 31, 1972
(En Banc)
viii. Decree of Legal Separation, Arts. 63-64 to Art. 43 and
213, FC
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 disqualifi ed 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)
Scope
This Article applies regarding some effects after the grant of
a decree of legal separation.
Continued Existence of the Marriage
(a) Neither party can have a paramour.
(b) The married couple cannot insist on sexual intercourse
with each other.
(c) Even if the wife be the one guilty, she may continue
using her maiden name.
Custody of the Minor Children The custody is generally
given to the innocent spouse.
Disqualification from Testate and Intestate Succession
Generally, the guilty spouse cannot inherit from the
innocent spouse.
Laperal v. Republic L-18008, Oct. 30, 1962
The dissolution and liquidation of the conjugal partnership
upon issuance of the decree of legal separation SHALL BE
AUTOMATIC.
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 a 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 fi ve years from the time the decree of legal
separation has become fi nal. (107a)
Two Things that May Be Revoked by the Innocent Spouse
(a) Donations made in favor of the offending spouse.
(b) Designation of the offending spouse as benefi ciary in
the insurance contracts of the innocent spouse.
Laperal v. Republic, G.R. No. L-18008, October 30, 1962
(En Banc)
Siochi v. Gozon, G.R. No. 169900, March 18, 2010
ix. Reconciliation, Art. 65-67, FC
Procedure
Art. 65. If the spouses should reconcile, the corresponding
joint manifestation under oath duly signed by them shall be
fi led with the court in the same proceeding for legal
separation. (n)
This Article requires a joint manifestation under oath in
case of reconciliation.
Art. 66. The reconciliation referred to in the preceding
Article shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall
thereby be terminated in whatever stage; and
(2) The fi nal 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 order containing the foregoing shall be
recorded in the proper civil registries. (108a)

(1) Generally, forfeiture of the share of the guilty spouse

remains — if there should be a reconciliation.
(2) Exception — when the parties agree to revive the former
property regime.

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 fi led 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 measures 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)

Effects of Reconciliation on:

1) personal relations
2) pending case
3) judgment prior to the issuance of the final decree
4) final decree of legal separation
5) property relations

x. Registration requirements