LEGAL SEPARATION

UNDER THE FAMILY CODE

Concept of Separation & Divorce
BENEDICTO v. DELA RAMA (1903) the only ground for divorce is
adultery; either of the spouses can file but the divorce decree does not
dissolve the marriage bond.
1. Separation in Fact
FC Arts. 238-248 procedure to be followed when the husband and wife
are separated in fact and one of them seeks judicial authorization for
transaction where the consent of the other spouse is required but cannot
be obtained or is withheld.
VILLANUEVA v. CHIONG (2008) the separation in fact of the spouses
since 1975 neither affected the nature of the lot nor prejudiced the wifes
interest over it. The lot remains conjugal in nature.
2. Agreements to separate
FC, Art. 1 Marriage is a special contract of permanent union between a
man and a woman entered into in accordance with law for the
establishment of conjugal and family life. It is the foundation of the family
and an inviolable social institution whose nature, consequences, and
incidents are governed by law and not subject to stipulation, except that
marriage settlements may fix the property relations during the marriage
within the limits provided by this Code.
NCC Art. 221 (1) The following shall be void and of no effect:
(1) Any contract for personal separation between husband
and wife.
3. Absolute Divorce
(a) Under the Family Code FC Art. 26 par. 2
(b) Under the Muslim Code MC 45-55
Concept of Legal Separation
Under the Civil Code:
Art. 97 A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage
on the part of the husband as defined in the Penal Code; or
(2) An attempt by one spouse against the life of the other.

Grounds for Legal Separation

(Family Code, 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 (Violence Against Women & their
Children)
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 (Violence Against Women & their
Children)
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
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
REPUBLIC v. QUINTOS (2012) sexual infidelity not valid ground for
Art. 36 considering that there should be a showing that such marital
infidelity was a manifestation of a disordered personality that made her
completely unable to discharge the essential obligations of marriage.
Drug addiction, habitual alcoholism, lesbianism and homosexuality
As a ground for legal separation:
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
Compared with voidable marriage, Art. 46 (4)
Concealment of drug addiction, habitual alcoholism or homosexuality or
lesbianism existing at the time of marriage.
ALMELOR v. RTC (2008) homosexuality per se is only a ground for legal
separation. It is its concealment that serves as a valid ground to annul a
marriage. Concealment in this case is not simply a blanket denial, but one that is
constitutive of fraud. It is this fundamental element that respondent failed to
prove.
CAMPOS v. CAMPOS (2012) With respect to respondents alleged
homosexuality, such issue is for the determination of the trial court wherein the
petition for declaration of nullity is pending. Thus, we also agree with the
investigating judge and the OCA in absolving respondent from the charge of
dishonesty. The fact that respondent got married and had children is not proof
against his claim of homosexuality. As pointed out by the investigating judge, it is
possible that respondent was only suppressing or hiding his true sexuality.
Abandonment
REPUBLIC v. QUINTOS (2012) The only fact established here, which Catalina
even admitted in her Answer, was her abandonment of the conjugal home to live
with another man. Yet, abandonment was not one of the grounds for the nullity of
marriage under the Family Code. It did not also constitute psychological
incapacity, it being instead a ground for legal separation under Article 55(10) of
the Family Code. On the other hand, her sexual infidelity was not a valid ground
for the nullity of marriage under Article 36 of the Family Code, considering that
there should be a showing that such marital infidelity was a manifestation of a
disordered personality that made her completely unable to discharge the
essential obligations of marriage. Needless to state, Eduardo did not adduce
such evidence, rendering even his claim of her infidelity bereft of factual and
legal basis.

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)
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 petition
(a) cooling off period FC Art. 58

(b) right of consortium

FC Art. 61 (1) After the filing of the petition for legal separation, the spouses
shall be entitled to live separately from each other.
(c) Administration of property
FC Art. 61 (2) 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 of 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.
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
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)

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.

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.

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.

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;
(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.
PEOPLE v. SCHNECKENBERGER (1941) - Upon the other hand, we
believe and so hold that the accused should be acquitted of the crime of
concubinage. The document executed by and between the accused and
the complaint in which they agreed to be "en completa libertad de accion
en cualquier acto y en todos conceptos," while illegal for the purpose for
which it was executed, constitutes nevertheless a valid consent to the act
of concubinage within the meaning of section 344 of the Revised Penal
Code. There can be no doubt that by such agreement, each party clearly
intended to forego to illicit acts of the other.

(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.
REPUBLIC v. CA (2012) Verily, the payment to Catalina could not be a
manifest sign of a collusion between her and Eduardo. To recall, she did
not interpose her objection to the petition to the point of conceding her
psychological incapacity, but she nonetheless made it clear enough that
she was unwilling to forego her share in the conjugal house. The
probability that Eduardo willingly gave her the amount of P50,000.00 as
her share in the conjugal asset out of his recognition of her
unquestionable legal entitlement to such share was very high, so that
whether or not he did so also to encourage her to stick to her previously
announced stance of not opposing the petition for nullity of the marriage
should by no means be of any consequence in determining the issue of
collusion between the spouses.

Effect of decree of legal separation

(a) on personal relations
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)
(b) on custody of children
Art. 63. The decree of legal separation shall have the following effects:
(3) The custody of the minor children shall be awarded to the innocent spouse,
subject to the provisions of Article 213 of this Code;
Art. 213. In case of separation of the parents, parental authority shall be
exercised by the parent designated by the Court. The Court shall take into
account all relevant considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit. (n)
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.

(c) on property relations

Art. 63. The decree of legal separation shall have the following effects:
(2) The absolute community or the conjugal partnership shall be dissolved and
liquidated but the offending spouse shall have no right to any share of the net
profits earned by the absolute community or the conjugal partnership, which shall
be forfeited in accordance with the provisions of Article 43(2);

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.
Art. 102. Upon dissolution of the absolute community regime, the following
procedure shall apply:
(4) The net remainder of the properties of the absolute community shall
constitute its net assets, which shall be divided equally between husband and
wife, unless a different proportion or division was agreed upon in the marriage
settlements, or unless there has been a voluntary waiver of such share provided
in this Code. For purpose of computing the net profits subject to forfeiture in
accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the
increase in value between the market value of the community property at the
time of the celebration of the marriage and the market value at the time of its
dissolution.
Art. 129. Upon the dissolution of the conjugal partnership regime, the following
procedure shall apply:
(7) The net remainder of the conjugal partnership properties shall constitute the
profits, which shall be divided equally between husband and wife, unless a
different proportion or division was agreed upon in the marriage settlements or
unless there has been a voluntary waiver or forfeiture of such share as provided
in this Code.
Case:
QUIAO v. QUIAO (2012) (d) Now, what remains of the separate or exclusive
properties of the husband and of the wife shall be returned to each of them. In
the instant case, since it was already established by the trial court that the
spouses have no separate properties, there is nothing to return to any of them.
The listed properties above are considered part of the conjugal partnership.
Thus, ordinarily, what remains in the above-listed properties should be divided
equally between the spouses and/or their respective heirs. However, since the
trial court found the petitioner the guilty party, his share from the net profits of the
conjugal partnership is forfeited in favor of the common children, pursuant to
Article 63(2) of the Family Code. Again, lest we be confused, like in the absolute
community regime, nothing will be returned to the guilty party in the conjugal
partnership regime, because there is no separate property which may be
accounted for in the guilty party's favor.

(d) on support
Art. 198. During the proceedings for legal separation or for annulment of
marriage, and for declaration of nullity of marriage, the spouses and their children
shall be supported from the properties of the absolute community or the conjugal
partnership. After the final judgment granting the petition, the obligation of mutual
support between the spouses ceases. However, in case of legal separation, the
court may order that the guilty spouse shall give support to the innocent one,
specifying the terms of such order. (292a)
(e) on the use of surname
NCC Article 372. When legal separation has been granted, the wife shall
continue using her name and surname employed before the legal separation.
Case:
LAPERAL v. REPUBLIC (1962) wife who obtained legal separation
cannot revert to using her maiden name besides the conjugal partnership
had already been dissolved.
(e) on hereditary rights
Art. 63 (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)
(g) Solo Parents Act R.A. No. 8972
Section 3 Definition of terms
(a) "Solo parent" - any individual who falls under any of the following categories:
(5) Parent left solo or alone with the responsibility of parenthood due to
legal separation or de facto separation from spouse for at least one (1)
year, as long as he/she is entrusted with the custody of the children;
Section 6. Flexible Work Schedule. - The employer shall provide for a flexible
working schedule for solo parents: Provided, That the same shall not affect
individual and company productivity: Provided, further, That any employer may
request exemption from the above requirements from the DOLE on certain
meritorious grounds.
Section 7. Work Discrimination. - No employer shall discriminate against any solo
parent employee with respect to terms and conditions of employment on account
of his/her status.
Section 8. Parental Leave. - In addition to leave privileges under existing laws,
parental leave of not more than seven (7) working days every year shall be
granted to any solo parent employee who has rendered service of at least one

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(1) year.
Section 9. Educational Benefits. - The DECS, CHED and TESDA shall provide
the following benefits and privileges:
(1) Scholarship programs for qualified solo parents and their children in
institutions of basic, tertiary and technical/skills education; and
(2) Nonformal education programs appropriate for solo parents and their children.
The DECS, CHED and TESDA shall promulgate rules and regulations for the
proper implementation of this program.
Section 10. Housing Benefits. - Solo parents shall be given allocation in housing
projects and shall be provided with liberal terms of payment on said government
low-cost housing projects in accordance with housing law provisions prioritizing
applicants below the poverty line as declared by the NEDA.
Section 11. Medical Assistance. - The DOH shall develop a comprehensive
health care program for solo parents and their children. The program shall be
implemented by the DOH through their retained hospitals and medical centers
and
the
local
government
units
(LGUs)
through
their
provincial/district/city/municipal hospitals and rural health units (RHUs).

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)
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.

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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)

Effect of death of one of the parties

Cases:
LAPUZ v. EUFEMIO (1972) - An action for legal separation which involves
nothing more than the bed-and-board separation of the spouses (there being no
absolute divorce in this jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by allowing only the innocent spouse
(and no one else) to claim legal separation; and in its Article 108, by providing
that the spouses can, by their reconciliation, stop or abate the proceedings and
even rescind a decree of legal separation already rendered. Being personal in
character, it follows that the death of one party to the action causes the death of
the action itself actio personalis moritur cum persona.
MACADANGDANG v. CA (1981) The death on November 30, 1979 of herein
petitioner who was declared the guilty spouse by the trial court, before the
liquidation of the conjugal property is effected, poses a new problem which can
be resolved simply by the application of the rules on intestate succession with
respect to the properties of the deceased petitioner.
Thus, the rules on dissolution and liquidation of the conjugal partnership of gains
under the aforecited provisions of the Civil Code would be applied effective
January 4, 1973 when the decree of legal separation became final. Upon the
liquidation and distribution conformably with the law governing the effects of the
final decree of legal separation, the law on intestate succession should take over
in the disposition of whatever remaining properties have been allocated to
petitioner. This procedure involves details which properly pertain to the lower
court.
The properties that may be allocated to the deceased petitioner by virtue of the
liquidation of the conjugal assets, shall be distributed in accordance with the laws
of intestate succession in Special Proceedings No. 134.

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