1

LEGAL SEPARATION Divorce; Divorce is the dissolution or partial suspension by law of the marital relation; the dissolution being termed divorce from the bond of matrimony, or a vinculo matrimonii; the suspension being known as divorce from bed and board, or a mensa et thoro. Same; Kinds; There are 2 kinds of divorce; first, absolute divorce, or a vinculo matrimonii, which is the separation of spouses for a cause authorized by law by a judgment of a competent court whereby the marriage tie is dissolved leaving the parties free to contract a new marriage; and second, relative divorce, or a mensa et thoro, which is the separation of the spouses from bed and board for a cause authorized by law by the judgment of a competent court but the marriage tie subsists and the parties are not allowed to marry again. Under the NCC, relative divorce is known as legal separation. Under the NCC, absolute divorce is not recognized. However, for a period of 20 years from June 17, 1949, absolute divorce in accordance with Mohammedan customs and practices is recognized for

Mohammedans residing in non-Christian provinces. This law, in turn, is now superseded by the Muslim Code off Personal Laws, wherein absolute divorce in accordance with Muslim customs and practices is also recognized. Legal Separation Distinguished from Separation of Property Legal separation and separation of property may be distinguished from each other in the following ways: 1. In legal separation, there is suspension of the common life of the husband and wife covering their persons and properties; while in separation of property, there is suspension only of the property

elations of the husband and wife. Hence, the husband and wife may still be living together. However, their absolute community of property or conjugal partnership is dissolved. 2. Legal separation cannot be granted on mere stipulation of facts, or confession of judgment or agreement of the parties. On the other hand, separation of properties can be effected by agreement of the spouses during the marriage subject, however, to the court approval. If done prior to marriage, separation of property can be effected through the marriage settlement. 3. Legal separation necessarily involves separation of property, but there may be separation of property of the spouses without legal separation as they may still be actually living together.

Legal Separation Distinguished from Separation De Facto 1. Only by decree of court can legal separation be effected while in separation of de facto, the spouses can separate from each other at anytime without need for a court order. 2. Dissolution of the absolute community of property or conjugal partnership of the spouses necessary results from legal separation. The share of the guilty spouses in the net profits of the absolute community of property or conjugal partnership is forfeited. Neither can said guilty spouses inherit from the innocent spouses. In separation de facto, the husband and the wife are still heirs of each other, their property relations remain, no matter how guilty one party is, unless the innocent party disinherits the guilty party on his will.

Legal Separation Distinguished from Annulment 1. The marriage is not defective in legal separation. The marriage is defective in annulment of marriage.

2. In legal separation, the grounds arise only after the marriage. In annulment of marriage, the grounds must exist at the time or before the marriage. 3. In legal separation, the spouses are still married to each other and cannot therefore, remarry. In annulment of marriage, the spouses can marry again as the marriage is set aside. 4. In legal separation, there are ten (10) grounds while in annulment there are only six (6) grounds.

Grounds for Legal Separation A petition for legal separation may be filed only by the husband or the wife, as the case may be, within five (5) years from the time of the occurrence of any of the following grounds: 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; 3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; 4. Final judgment sentencing the respondent to imprisonment of more than six (6) 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 ; 9. Attempt of the respondent against the life of the petitioner;

10. Abandonment of petitioner by respondent without justifiable cause for more than one year.

Defenses in Action for Legal Separation 1. Condonation, or the act of the innocent spouse in forgiving the offender subject to the condition that the offense shall not be repeated. 2. Consent, or that where the aggrieved party has agreed to the commission of the offense or the act complained of. 3. Connivance, or the act of one spouse in consenting to the commission of the offense or the act constituted the ground for legal separation by the other. 4. Mutual guilt, or where both parties have given ground for legal separation. 5. Collusion, or agreement between two (2) spouses by virtue of which one of them will commit or appear to commit or be represented as having committed an offense which constitutes a ground for legal separation. 6. Prescription of action, or where the action was not filed within five years from the time of the occurrence of the cause. The court shall deny the petition for legal separation on any of the aforementioned defenses. Problem: Which of the following remedies, i. e. (a) declaration of nullity of marriage. (b) annulment of marriage, (c) legal separation, and/or (d) separation of property, can an aggrieved spouse avail of a. If the wife discovers after the marriage that her husband has AIDS.

b. If the wife goes abroad to work as a nurse and refuses to come home after the expiration of her three year contract there. c. If the husband discovers after the marriage that his wife has been a prostitute before they got married. d. If the husband has a serious affair with his secretary and refuses to stop notwithstanding advice from relatives and friends. e. If the husband beats up his wife every time he comes home drunk. Answer: a. Since AIDS is a serious and incurable sexually transmissible disease, the wife may file an action for annulment of the marriage on this ground whether such fact was concealed or not from the wife, provided that the disease was present at the time of the marriage. The marriage is voidable even though the husband was not aware that he had the disease at the time of the marriage. b. If the wife refuses to come home from three (3) months from the expiration of her contract, she is presumed to have abandoned the husband and he may file an action for judicial separation of property. If the refusal continues for more than one year, the husband may file an action for legal separation on the ground of abandonment without justifiable cause for more than one year. The wife is deemed to have abandoned the husband when she leaves the conjugal dwelling without any intention of returning. The intention not to return cannot be presumed during the 3-year period of her contract. c. If the husband discovers after the marriage that his wife was a prostitute before they got married, he has no remedy. No misrepresentation or deceit as to character, health, rank, fortune,

chastity shall constitute fraud as legal ground for an action for the annulment marriage. d. The wife may file an action for legal separation. The husbands sexual infidelity is a ground for legal separation. She may also file an action for judicial separation of property for failure of her husband to comply with his marital duty of fidelity. e. The wife may file an action for legal separation on the ground of repeated physical violence on her person. She may also file an action for declaration of nullity of the marriage if the husbands behaviour constitutes psychological incapacity existing at the time of the celebration of marriage. Problem: If a man commits several acts of sexual infidelity, particularly in 2009, 2011, 2012, does the prescriptive period to file for legal separation run from 2009? Answer: Every act of sexual infidelity committed by the man is a ground for legal separation under Article 55 (8) of the Family Code. Hence, the prescriptive period begins to run upon the commission of each act of infidelity.

Effects of a Decree of Legal Separation 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 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 Art. 43 (2) of the Family Code. 3. The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of the Family Code. 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. 5. The innocent spouse may revoke the donations made by him or 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 stipulated as irrevocable, following the date the decree became final. The revocation of the donations shall be recorded in the registries of properties 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 donations herein must be brought within five (5) years from the time the decree has become final. Problem: The husband was granted a decree of legal separation on the ground of adultery on the part of the wife. May the wife inherit from the husband. a. By intestate succession? b. By will? Reasons.

Answer: a. The wife in the instant case cannot inherit from her husband by intestate succession. According to the law, the offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. b. It depends. If the will was executed prior to the legal separation, it is clear that in effect the wife cannot inherit from her husband. According to the law, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. However, if the will was executed subsequent to the legal separation, undoubtedly, the wife will then be able to inherit from her husband. The reason is obvious. There is a tacit or implied pardon. Effects of Filing a Petition for Legal Separation 1. The spouses are entitled to live separately from each other. The wife can already have a residence of her own separate from her husbands residence. 2. The husband has no more rights to have sexual intercourse with his wife and if he forces himself upon her, he can be charged criminally. 3. The court shall designate the husband or the wife to manage the absolute community or conjugal partnership property in the absence of an agreement between the spouses. 4. The court may designate a third person to administer the properties of the spouses. The administrator appointed by the court shall have the same powers and duties as a guardian under the Rules of Court and therefore, cannot alienate or encumber any property of the spouses without court authority.

Under the Rule on Provisional Orders, if a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, he court may, upon application of the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precautionary conditions it may impose. The receiver or administrator may not dispose of or encumber any common property or specific separate property of either spouse without prior authority of the court. The provisional order issued by the court shall be registered in the proper Register of Deeds and annotated in all titles of properties subject of the receivership or administration.

Effects of Reconciliation of the Spouses 1. The legal separation proceedings, if still pending, shall thereby be terminated in 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 order containing the foregoing shall be recorded in the proper civil registries. Steps to Revive the Former Property Regime Upon Reconciliation of the Spouses If the spouses agree to revive their former property regime, they shall execute an agreement under oath and specify the following: 1. The properties to be contributed anew to the restored regime;

10

2. Those to be retained as separate properties of each spouses; and 3. The names of all their known creditors, their addresses and the amount owing to each. The spouses should then submit to the court the above mentioned agreement of revival together with the motion asking for its approval. The motion shall be submitted in the same proceeding for legal separation. Copies of the agreement and the motion shall be furnished 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 property. 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 creditors claim.

Source: Civil Code of the Philippines, Annotated By: Edgardo L. Paras 2008 Edition