ATENEO DE DAVAO UNIVERSITY

COLLEGE OF LAW
Legal Separation
In the Philippine Setting











Submitted by:

Syed Kamal Reza L. Ampatuan
Regina Via G. Garcia
Lourdes Jane N. Mahipus


Section: I - Viada


Submitted to:

Mr. Alfredo L. Alpas



March 21, 2014


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I. INTRODUCTION
Marriage is considered one of the most highly regarded unions in our society. However,
not at all times marriage works out and as what Justice Regalado stated in People of the
Philippines vs. Ruben Takobo, G.R. No. 102984, June 30, 1993, The nuptial vows which
solemnly intone the matrimonial promise of love "or better or for worse, for richer or for poorer,
in sickness and in health, till death do us part, are sometimes easier said than done, for many a
marital union figuratively ends on the reefs of matrimonial shoals.. Thus, the Philippine law has
come up with provisions that present alternatives in remedying situations that have conflict that
are present between married couples. Since Philippine law dont permit absolute divorce, the
alternative, which is relative divorce, is present and this is called legal separation.

II. LAWS ON LEGAL SEPARATION
Legal separation or relative divorce is only a separation from bed and board but the
parties remain married. According to the Civil Code of the Philippines, Title 2, Article 55, the
following are grounds of 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;
(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.
These grounds are not exclusive. Some of the above-listed grounds may actually be a
manifestation of a greater psychological problem, in which case you may have a case ripe for
declaration of nullity of marriage. The same will only be determined after consulting with a
psychiatrist, and after discussing it with a lawyer. Mere preponderance of evidence, not guilt
beyond reasonable doubt, will suffice to prove the existence of any of the grounds, although in

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ground no. 4, previous criminal conviction is essential in view of the necessity for a final
judgement.
Under Article 56 of the same code and title, the following are instances where a petition
for legal separation may be denied:
(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.
Condonation is the forgiveness or pardon of the guilty spouse by the aggrieved spouse
and it may be express or implied. Also, it comes after the commission of the offense. Consent
may be express or implied and it comes before the commission of the offense. Connivance
occurs when parties bring an action for legal separation despite lacking grounds for legal
separation. Mutual guilt, such as in ground no. 4, as a defense is based on the principle that a
person must come to court with clean hands. Collusion is when the parties seeking legal
separation make it look like there is an offense or to supress evidence of a valid defense for the
purpose of enabling the other to obtain a decree of legal separation. Prescription for legal
separation is five years from the occurrence of the cause and not from the discovery of the cause.
Under Article 63 of the same code and title, the effects of legal separation are stated and
those are:
(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.
The effect is merely separation in bed and board, and does not grant either the husband or
the wife, the right to remarry. Likewise, the absolute community of property or the conjugal
partnership is dissolved. Also, the wife cannot drop the surname of the husband after the decree
of legal separation because they are still married. The custody of the minor children shall be
awarded to the innocent spouse subject to the provision of Article 213. The erring spouse shall
have no right to the net gains of the property.

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III. LEGAL SEPARATION DISTINGUISHED
The feature that differentiates and distinguishes legal separation from both annulment and
nullity of marriage is the fact that in legal separation, there is no cutting of marital ties, meaning,
that even if a legal separation is already granted, your wife is still your wife and your husband is
still your husband. You are not allowed to remarry. A decree of legal separation only permits the
husband or the wife to live separately. Hence, what it permits is separation from bed and board.
The difference between legal separation from separation of proper are that in legal
separation, the common life of the spouse is suspended, both as to person and as to properties
while in separation of property, only the property relations of the spouses are suspended, they
may still be living together but their community property of conjugal partnership is dissolved. As
to the agreement of the parties, in legal separation, it cannot be granted while in separation of
property, it can be effected by agreement of the parties subject to court approval. Legal
separation always involves separation of property but there can be no separation of property
without legal separation.
Another distinct difference is between legal separation and separation de facto. Legal
separation can be effected only by decree of court while the parties can separate any time without
a court order in separation de facto. Also, legal separation necessarily results in dissolution of the
parties absolute community of property or conjugal partnership while in separation de facto, the
property relations of the spouses remain and they are still heirs of each other, no matter how
guilty one spouse is, unless the innocent spouse disinherits the guilty in his or her will.

IV. JURISPRUDENCE
Applying the foregoing laws and principles, a line of cases regarding Legal Separation
was decided by the Supreme Court which provided the legal face of the matter, including the
grounds and the rationale behind the ruling in the given case.
The legality of this topic is that it gives the couples the proper outline of steps in
resolving their marriage in a way that would not directly destroy and affect their marriage as a
sacred institution. The essence of the sacredness of marriage is of primary importance given by
law and thus it is without a doubt that Legal Separation paves a way of hope through process,
trial and valid reasons to petition such separation. The law provides a double blade of hope to
both the parties in saving the sanctity of their marriage.
The downside of this topic is provided in the case of Republic of the Philippines vs.
Cesar Encelan, G.R. No. 170022, January 9, 2013, it was stated that in any event, sexual
infidelity and abandonment of the conjugal dwelling, even if true, do not necessarily constitute
psychological incapacity; these are simply grounds for legal separation. Thus, the grounds on
legal separation were established in this case as unfit to be within the ambit of Psychological
Incapacity.
Hence, the couples, regardless of the fact of gravity in the grounds for such petition
would still not entitle the parties absolute divorce and separation. It was known that many people
are confused and may interchange the term legal separation from annulment. But the main
difference is that, in legal separation, the couples are still considered as married to each other.
Therefore when a chance of reconciliation occurs, they do not need to remarry anymore.

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However, it encourages the parties that marriage can have a temporary interval to give
space and distance between the couples.
Considering the aforementioned grounds for Legal Separation, it can be deduced that
Legal Separation relies on the serious moral and physical injuries caused by the offender and not
merely on the psychological incapacity of the person accused but on the greater wing of
psychological problem. That being said, the legal perspective of Legal Separation can be
understood to be based on the gravity and amount of acts caused and committed against the
aggrieved party and stands firm on the foundation of separating them bed and board giving both
parties the sufficient chance and space to contemplate over the situation of the status of their
marriage. The legal vernacular on legal separation provides both parties the opportunity to
remedy the evil done in their situation through proper trial and procedure.
In the case of Froilan C. Gandionco vs. Hon. Senen C. Pearanda, G.R. No. 79284
November 27, 1987, a decree of legal separation, on the ground of concubinage, may be issued
upon proof by preponderance of evidence in the action for legal separation. No criminal
proceeding or conviction is necessary. In view of the amendment under the 1985 Rules on
Criminal Procedure, a civil action for legal separation, based on concubinage, may proceed
ahead of, or simultaneously with, a criminal action for concubinage, because said civil action is
not one "to enforce the civil liability arising from the offense" even if both the civil and criminal
actions arise from or are related to the same offense.
In the case of William Ong vs. Lucita G. Ong, G.R. No. 153206, October 26, 2006, Art.
56, par. (4) of the Family Code was mentioned which provides that legal separation shall be
denied when both parties have given ground for legal separation. The abandonment referred to
by the Family Code is abandonment without justifiable cause for more than one year. As it was
established that Lucita left William due to his abusive conduct, such does not constitute
abandonment contemplated by the said provision. As a final note, we reiterate that our
Constitution is committed to the policy of strengthening the family as a basic social institution.
The Constitution itself however does not establish the parameters of state protection to marriage
and the family, as it remains the province of the legislature to define all legal aspects of marriage
and prescribe the strategy and the modalities to protect it and put into operation the constitutional
provisions that protect the same. With the enactment of the Family Code, this has been
accomplished as it defines marriage and the family, spells out the corresponding legal effects,
imposes the limitations that affect married and family life, as well as prescribes the grounds for
declaration of nullity and those for legal separation.
In the case of Brigido B. Quiao vs. Rita C. Quiao, G.R. No 176556, July 4, 2012, the trial
court rendered its Decision on October 10, 2005. The petitioner neither filed a motion for
reconsideration nor a notice of appeal. On December 16, 2005, or after 67 days had lapsed, the
trial court issued an order granting the respondent's motion for execution; and on February 10,
2006, or after 123 days had lapsed, the trial court issued a writ of execution. Finally, when the
writ had already been partially executed, the petitioner, on July 7, 2006 or after 270 days had
lapsed, filed his Motion for Clarification on the definition of the net profits earned. From the
foregoing, the petitioner had clearly slept on his right to question the RTCs Decision dated
October 10, 2005. For 270 days, the petitioner never raised a single issue until the decision had
already been partially executed. Thus at the time the petitioner filed his motion for clarification,
the trial courts decision has become final and executory. A judgment becomes final and
executory when the reglementary period to appeal lapses and no appeal is perfected within such
period. Consequently, no court, not even this Court, can arrogate unto itself appellate jurisdiction
to review a case or modify a judgment that became final. A judgment is null and void when the

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court which rendered it had no power to grant the relief or no jurisdiction over the subject matter
or over the parties or both. In other words, a court, which does not have the power to decide a
case or that has no jurisdiction over the subject matter or the parties, will issue a void judgment
or a coram non judice.
It is in the courts that lies the power to decide and proceed to such judgement as to give
the parties the will to save or remedy their marriage, be it in the manner that would affect the
dissolution or reunification of their marriage. A petitioner for a legal separation must prove the
allegations that are contained in the petition. You must have certain grounds for you to file for a
legal separation. But during the course of the process, the court requires the pre-trial conference
not more than 6 months from the filing of the petition. This period can give the couple a chance
to change their mind. If not, the trial is then followed.
For all couples who feel that there is something wrong in their marriage, annulment is not
always the solution and in certain cases, couples would always encounter rocky edges and
crooked pavements on their marriage but at the end of the day, couples will still be couples. They
are bound by the word of the law and only a legally valid rational that would lead a reasonable
and prudent man to believe that their marriage is worth dissolving for.

V. MORALITY
Before any discussion regarding the positive and negative factors of legal separation can
be made, the moral implications of marriage must first be discussed. This is because the act of
legal separation cannot be done without the person who does the legal separation being married
in the first place. Certain questions such us why human beings go into holy matrimony? and
what are its moral implications? must first be answered. Once they are answered, then we can
know, the pros and cons of legal separation.
Let us first examine certain determinants of what makes an act moral. According to most
writers, the goal of mankind is to reach a certain level of fulfilment, or of completion.
Sometimes, this destination is called being fully human or attaining a certain kind of human
perfection. This starts with a certain feeling of emptiness, which then renders a desire towards
something more real. We therefore give value to our acts because they make us strive towards
that goal, that state of human perfection. These values are of different kinds, that is the Infra-
human, the human, and the spiritual values; each of which pertains to certain acts that would let
us strive towards our ultimate goal. The moral act is therefore determined according to these
writers, by how much value the act renders in relation to attainment of human perfection.
Austin Fagothey on the other hand, said that there are certain elements which make an act
moral or immoral. The three source of morality, to put it quite simply are the act itself, the
motive and circumstances surrounding the act. To be morally good, according to him, the human
act must agree with the norm of morality on all those three counts.
Lastly, according to Monden, there is that dynamic existing reality, an ordering of man
towards his self-perfection and his self-realization, through all the concrete situations in his life
and in inter-subjective dialog with his fellow man and with God. This concept is called Natural
Law. According to Brendan F. Brown, Natural law is that objective, eternal and immutable
hierarchy of moral values that are sources of obligations with regard to man because they have
been so ordained by the Creator of Nature. The ideal of this law according to her is that every
man must live in accordance with his rational nature, so that he will do good and avoid evil.

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If we apply these principles to the concept of marriage, we will be able to ascertain the
moral reasons why our society has since time immemorial, held sacred the sacrament of
marriage. This in turn will let us understand the moral implications of having the husband and
wife legally separated, that is, for one to leave the conjugal home, or to free them from the legal
obligation to co-habitate. In all these aspects of determining the moral implication of acts, if
related to Family life; must not only concern the Mother, and the father, but what should also be
taken into consideration is the growth of the children, towards attaining their full humanity.
According to Brendan F. Brown, there are two purposes of marriage; the primary and
secondary. The primary pertains to the self-evident objective of satisfying the urge toward
propagation and care for the physical needs of the children, and their moral and educational
training. The secondary objective of marriage is the mutual assistance of the spouses, physical,
mental, and spiritual, and the allaying of concupiscence. What can be gleaned from her definition
of the primary purpose of marriage is that it pertains to the welfare not of the spouses
themselves, but the children. This means, that from the very act of engaging into marital relation,
the primary concern is the human fulfillment, not of the spouses, but of the children. The striving
of the spouses towards their own perfection is only a secondary purpose of marriage.
As it relates therefore to the inherent desire of human beings towards becoming fully
human, marriage attains a certain moral value, for it creates an atmosphere where in the Infra-
human, the human, and the spiritual values of the husband, the wife, and the children are met.
Infra-Human, because with two individuals, that is the husband and the wife, striving on meeting
and maintaining the physiological demands of the children and of each other, their physical
growth is secured. Certain physiological needs are attained by the family members, through the
nurture and support they give to eachother. Human, because, through marriage, two individuals
will be able to help not only each other, but most especially the children, to attain their
economic, intellectual, aesthetic, social, and even emotional needs. The Family home, being
traditionally held as a primary micro-economic unit, where certain financial management is done
through the labors and financial maintenance of the spouses, the economic safety of its members
are adequately secured. The intellectual needs, especially of the children are also secured by
having a mother and a father that relay adult wisdom and knowledge to the children. The
childrens human values are first developed in the family home. True enough, psychologists such
as Sigmund Freud would agree that the childhood life of a person has substantial bearing upon
his personality as he attains adulthood. The environment of a person in his childhood would
create a massive effect to his personality. Lastly; spiritual, due to the fact that under a traditional
family home where a husband provides, and wife maintains the family home, and therefore
meets the first and second moral values discussed above, there is now an atmosphere where in
the divine laws of God are adequately taught, and practiced, unhindered by want of
physiological, economic, intellectual, aesthetic, social, and emotional security. It appears that
only absolute monogamous marriages can adequately fulfill these values. For if it were that
polygamous marriages, in any form, was allowed by our society's norm, it splits the obligation of
the polygamists to render adequate care, and moral and educational training to two different
families, as well as mutual assistance, pertaining to their physical, mental, and spiritual health of
two different partners. These evils, as will be discussed later, are the same evils that are sought to
be avoided by the concept of legal separation.
These same purposes fulfill the moral determinants as enumerated by Fagothey. By the
nature of marriages, it cannot be said that it is good or bad in itself, for it lacks moral
connotation, this is so since the act the agent wills to do, that is entering into a marital
relationship, does not in itself attain any clear and evident moral connotation. In order for it to be
given a a deeper moral implication, the motive of the agent willing to do the act must be stated

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clear. As discussed earlier, the purpose of marriage, according to norm, is primarily procreation
and the proper rearing of the child, and secondarily, mutual assistance of the spouses. The motive
of marriage must conform to these norms in order for it to attain its moral quality. The
circumstance of the marriage on the other hand may differ for different situations. When a
marriage for example was done while another marriage is still in-existence, it becomes a
specifying circumstance which constitutes polygamy. It is evident that the most important
determinant that must be conformed with, when one decides to go into marriage, is its motive
which conforms to the societal norm of the purpose of marriage. Certain circumstances which
would affect the purposes of marriage such as in polygamous marriage would therefore
constitute an immoral act for in doing so the purposes upon which the marriage was entered into
maybe vitiated, as discussed in the last sentences of the previous paragraph.
Lastly, if the morality of marriage is to be understood from the perspective of natural
Law, it can be said, according to Brendan F. Brown, that it is obviously deducible from its basic
Ideal, since without propagation and the rearing of children, the human race would become
extinct. He said, that All men realize that there must be some fixed, definite and settled
arrangement, which will enable man and woman not only to procreate, but also to protect the
offspring until they are capable of looking after themselves. The purposes of marriage upon
which it must conform has already been discussed previously, these same purposes would then
have an implication upon the kind of marriage that best aligns with natural law. That form,
according to Brown is Lifelong monogamy. This form of marriage, he said, is morally necessary
for the attainment of mans ethical life, and the aims and functions of marriage. This becomes
evident when it is contrasted with the various forms of polygamy. Polygamy, he says, entirely
suppresses or prevents the attainment of the primary end and is directly in opposition to the
secondary end. Marriage therefore, under natural law, may be defined as a lawful, exclusive, and
lifelong contract between a man and a woman, by which is mutually given and accepted a right
to those physical functions for the performance of acts which are mutually apt for the generation
of children, and secondarily for the mutual help of the spouses and the allaying of
concupiscence.
From these premises, the morality of legal separation becomes manifest. Legal
separation, according to Philippine Law is considered as relative divorce which does not entirely
dissolve marital relations. This means that a man or a woman legally separated is still prevented
by law to remarry. It causes either the husband or the wife to leave the conjugal home, and also
the separation of their properties. From the various grounds of legal separation, can be
ascertained, its moral implications. It is evident that from its legal effects, legal separation seeks
to prevent the evils of the different forms of polygamy, most importantly successive polygamy,
which is one where after a final judgment of absolute divorce, one is allowed to marry for a
second time. On the aspect of Human perfection, legal separations prevention of successive
polygamy, makes either of the spouses still give their undivided attention to their children, and
therefore continue to give their full support, and care concerning their intra-human, human, and
spiritual welfare of their children, although not so much on their spouses. On the aspect of the
different moral determinants, this prevention prohibits the existence of the kind of marriage
which defeats, or suppresses the motive of marriage of rendering adequate support and care to
children. If our Laws were to be amended and change our concept of divorce from the relative to
absolute, successive polygamy would then be lawful, and create a situation where in a man or a
woman would have two families to support and care for, in effect, they will not be able to
adequately render their obligation of the proper rearing of the children. Because it divides the
attention of the man and woman in rendering their obligation of giving proper rearing of their
children, successive polygamy, in a society where divorce is allowed, would make the concept of

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marriage run counter to the normally accepted purposes of marriage. This prevention also makes
legal separation moral, for it upholds the concept of marriage which best conforms to the
demands of natural law, already discussed.
Moreover, from the ten allowable grounds for legal separation; Physical violence or
grossly abusive conduct, compulsion to change religious or political affiliation, attempt to
corrupt or induce the petitioner or a common child, Final judgment sentencing the respondent to
imprisonment of more than six years, Drug addiction or habitual alcoholism of the respondent;
Lesbianism or homosexuality of the respondent, contracting by the respondent of a subsequent
bigamous marriage, sexual infidelity or perversion, Attempt by the respondent against the life of
the petitioner, and abandonment of petitioner by respondent without justifiable cause for more
than one year, can also show what makes legal separation either moral or immoral. By
examining this enumeration, There is no other conclusion that can be adduced, other than the fact
that these acts hinders the Intra-human, human, and spiritual growth of the aggrieved party and
more importantly the children. On the aspect of Human perfection therefore, Legal separation
gains its moral value over retaining the marriage bond since it can be the only way to prevent
these evil. To illustrate, where a Husband becomes a drug addict, He not only affects the kind of
influence he can give to the children, but also the economic standing of the family. On the aspect
of the moral determinants, it is quite clear that upon the happening of any of these grounds, the
circumstance of the marriage bond changes drastically, in that it completely changes in its moral
nature. To put it differently, the marriage becomes of a kind that is already detrimental to the
welfare of both the aggrieved spouse and children, for it affects the primary and secondary
purpose by which the marriage was originally entered into. Finally, from the point of view of
Natural Law, it shows that due to these grounds it becomes imperative for continued cohabitation
in this particular marriage become a cause or frustration of the two ends. Legal Separation also,
has certain aspects that can cause the detriment of the motives of marriage, especially the second
one. The secondary motive of marriage which helps the spouses fulfill the three values that
makes an act moral, in the first place, is lost the moment cohabitation ceases. And since the
secondary motive of marriage is destroyed when cohabitation ceases, it slightly destroys its
conformity to the ideal marriage which Natural Law proscribes.
Legal Separation, as defined by our laws, gains its moral ground, first from the fact that
though cohabitation ceases from the time a court judgement is rendered, it still prevents a person
from re-marrying, making the legal separated person still able to commit to the proper rearage of
his children, a primary consideration of marriage. From this point of view, the intra-human,
human, and spiritual values of the children is not hampered. Also from this same consideration
Legal separation is the kind of divorce which conforms best to Natural Law. Second, it gains
value over keeping the conjugal bond when the acts of the other spouse already cause detriment
to the quest of the person towards his personal growth as a human being.

VI. CONCLUSION
Legal separation has been part of the Philippine law for quite a while and thru its
application, a string of cases have shed light to the events that are occurring in the Philippines
society. Thus, with these laws and prohibitions regarding legal separation, certain morals have
been affected. It is seen that legal separation best conforms to Natural Law because although the
couples may live separately, their marriage ties are still intact and it gives them a chance to
preserve and repair the bond of their marriage, thus, preserving the sanctity of their union.


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REFERENCES

BOOKS
Persons and Family Relations by The Fraternal Order of St. Thomas More
Civil Code of the Philippines

ARTICLES
Brendan F. Brown,The Natural Law, the Marriage bond, and Divorce, 24 FordhamL. Rev. 83
(1955).
Natural Law by Louis Monden
Moral Determinants by Austin Fagothey

WEBSITES
RE: Proposed Rule on Legal Separation, A.M. No. 02-11-11-SC, March 4, 2003
http://www.lawphil.net/courts/supreme/am/am_02-11-11-sc_2003.html
Legal Separation under Article 55 of the Family Code of the Philippines
http://dmlaw.com.ph/services/family-law/legal-separation-under-article-55-of-the-family-
code-of-the-philippines.aspx

LECTURES
Christian Ethics Lectures by Mr. Alfredo L. Alpas

CASES
Brigido B. Quiao vs. Rita C. Quiao, G.R. No 176556, July 4, 2012.
http://sc.judiciary.gov.ph/jurisprudence/2012/july2012/176556.htm
Froilan C. Gandionco vs. Hon. Senen C. Pearanda, G.R. No. 79284 November 27, 1987.
http://www.lawphil.net/judjuris/juri1987/nov1987/gr_79284_1987.html
People of the Philippines vs. Ruben Takobo, G.R. No. 102984, June 30, 1993.
http://www.lawphil.net/judjuris/juri1993/jun1993/gr_102984_1993.html
Republic of the Philippines vs. Cesar Encelan, G.R. No. 170022, January 9, 2013.
http://www.lawphil.net/judjuris/juri2013/jan2013/gr_170022_2013.html
William Ong vs. Lucita G. Ong, G.R. No. 153206, October 26, 2006.
http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/153206.htm