Sei sulla pagina 1di 9

ARTICLE 55-67 LEGAL SEPARATION

What is the so-called cooling-off period?

The Family Code, under Articles 55 to 67, also provides for


legal separation where the conjugal property is liquidated,
and the spouses are free to live independently of each other
but without the right to marry other persons since the marriage
ties are still binding.

An action for legal separation shall in no case be tried before


six months shall have elapsed since the filing of the petition.

What are the grounds for legal separation?

[1] 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.

[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;

What are the duties of the Family Court in petitions for


legal separation?

[2] 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.
What happens when the petition is filed?

[4] Final judgment sentencing the respondent to imprisonment


of more than six years, even if pardoned;

[1] After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other.

[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;

[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 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.

[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.
The term "child" shall include a child by nature or by adoption.
Under what circumstances may the petition for legal
separation be denied?
The petition may 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.

[3] 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.
What does Article 49 provide for?
Article 49 of the Family Code states, 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.
What are the effects if the court grants the petition for
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 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 the
Family Code; and

When should the petition for legal separation be filed?


An action for legal separation shall be filed within five years
from the time of the occurrence of the cause.

[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.

What about the donations made by the spouses to each


other?
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 must be brought within five
years from the time the decree of legal separation has become
final.
What if there is reconciliation between the spouses while
the petition is being heard by the court?

I. OBLIGATION TO LIVE TOGETHER

Means co-habitation and sexual intercourse between


husband and wife. Pro-creation of children thru sexual
cooperation is an essential marital obligation and purpose.
Right to sexual intercourse however implies normal but not
perverse practices.
Spouse can also refuse sexual intercourse if one or the other
suffers STD.
If the spouse forces the other against her will, she may be
charged with
The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith. (117a)

[1] 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.
[2] The legal separation proceedings, if still pending, shall
thereby be terminated at whatever stage; and

(1) His income is sufficient for the family, according to its


social standing, and
(2) His opposition is founded on serious and valid
grounds.

[3] 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.

In case of disagreement on this question, the parents


and grandparents as well as the family council, if any,
shall be consulted. If no agreement is still arrived at, the
court will decide whatever may be proper and in the best
interest of the family.

What protection, if any, is provided for the creditors of the


spouses?

Article 67 provides that the agreement to revive the former


property regime shall be executed under oath and shall
specify:

II.

[3] The names of all their known creditors, their addresses and
the amounts owing to each.
The agreement of revival and the motion for its approval shall
be filed with the court in the same proceeding for legal
separation, with copies of both furnished to the creditors
named therein. After due hearing, the court shall, in its order,
take measure to protect the interest of creditors and such order
shall be recorded in the proper registries of properties.
The recording of the ordering in the registries of property shall
not prejudice any creditor not listed or not notified, unless the
debtor-spouse has sufficient separate properties to satisfy the
creditor's claim.
TITLE III. RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE
WHAT ARE THE OBLIGATIONS OF THE HUSBAND
AND WIFE TO EACH OTHER?
Art. 68. The husband and wife are obliged to live together,
observe mutual love, respect and fidelity, and render mutual
help and support.

Once they have chosen a family domicile, the


spouses have the duty to live together thereon.
But there are cases where the court may exempt
one spouse from living with the other.
EXEMPTION: Grounds
(1) If one of the spouses should live abroad, or;
(2) There are other valid and compelling reasons for
the exemption.

[1] The properties to be contributed anew to the restored


regime;
[2] Those to be retained as separated properties of each
spouse; and

Old Rule in Civil Code Art. 117. The wife may


exercise any profession or occupation or engage in
business. However, the husband may object,
provided:

The profession, occupation or business or activity of


either spouse must be legitimate: lawful, honest and
moral.

Q. Are there other legal recourse if the husband unjustifiably


prevent his wife from working or exercising a legitimate
profession, occupation or business or activity?
A. The spouse may avail and file a complaint based on Sec.
5(e) no. 4 of RA 9262 (Anti-VAWC Act) which provides for
criminal penalty of prision correccional (Sec. 6, par. c), for any
act of preventing the woman in engaging in any legitimate
profession, occupation or business or activity, or controlling her
own money or properties, or solely controlling the conjugal or
common money.
III.

If either spouse committed acts or transactions


without the consent, or despite objection of the other
spouse, will this bind or make the community or
conjugal property liable?
WHO IS RESPONSIBLE FOR THE SUPPORT OF THE
FAMILY?

WHAT IS THE ORDER OF PREFERENCE OF THE SOURCE


OF SUPPORT?
Art. 70. The spouses are jointly responsible for the
support of the family, the expenses for such support and
other conjugal obligations shall be paid from the
community property and in the absence there of, from the
income of fruits of their separate properties. In case of
insufficiency or absence of said income or fruits, such as
obligations shall be satisfied from the separate properties.

Compare to the Old Rule Art. III, Civil Code:


The husband is responsible for the support of the
wife and the rest of the family. These expenses shall
be met first from the conjugal property, then from the
husbands capital and lastly from the wifes
paraphernal property. In case there is a separation of
property, by stipulation in the marriage settlements,
the husband and wife shall contribute proportionately
to the family expenses.

1.

Support of the family shall be paid from the


following:
1st- community or conjugal property (also Arts. 94, FC)
2nd - Income of fruits of separate properties of the
spouses
3rd Separate properties of the spouses (Arts. 94 and
121, FC)
o Spouses respective liability is in proportion
to their income or properties; (Art. 146, FC)
o Liabilities of the spouses to creditors for
family expenses shall, however, be solidary.
(Art. 146, FC)

Art. 71. The management of the household shall be the


right and the duty of both spouses. The expenses for such
management shall be paid in accordance with the
provisions of Article 70.
o

Now both husband and wife shall share in the right


and duty to take care of the baby at night if both
spouses go to work during the day; budgeting for
family necessities, buying things for the support of
family members and maintenance of the home:
helping the wife with the household chores if there is
no domestic help. etc.

Q. What about if certain purchases made by the wife


(jewelries, expensive brand of shoes, bags, dresses),
can she charge this to the community or conjugal
property, or to the fruits and income of their separate
properties, or her own separate property?

A. The purchase of jewelries and precious objects is


voidable; if charged to the community or conjugal
property (a) unless the transaction has been
expressly or tacitly approved by the husband, or; (b)
unless the price paid is from her separate or
paraphernal property. (Article 115, Civil Code; Connel
Bros. Co. Phils. V. Hart et al, 1CA Res. 529)

That the spouses are jointly responsible for the


support of the family.
Because they are now joint administrators of their
absolute community or conjugal property. (Art. 124,
FC)

2.

housewife whose main role is only to manage the


household.

Old Rule Article 115. CIVIL CODE: The wife


manages the affair if the household. She may
purchase things necessary for the support of the
family, and the conjugal partnership shall be bound
thereby. She may borrow money for this purpose, if
the husband fails to deliver the proper sum. The
purchase of jewelry and precious object is voidable,
unless the transaction has been expressly or tacitly
approved by the husband, or unless the price paid is
from her paraphernal property.
Repealed by Art. 71, family code in view of the
demand by Flipino woman not to be stereotyped as

Art. 72. When one of the spouses neglects his or her


duties to the conjugal union or commits acts which tend
to bring danger, dishonor or injury to the other or to the
family, the aggrieved party may apply to the court for
relief.

Similar or consistent with Article 116, Civil Code


which Art. 72 of the family code now replaces.
Thus
When one of the spouses neglects his or
her duties to the conjugal union or brings
danger, dishonor or material injury upon the
other, the injured party may apply to the
court for relief.
The court may counsel the offender to
comply with his or her duties, and take such
measures as may be proper.

Article 72 covers two cases whereby the


aggrieved spouse may seek relief from the court,
such as:
1.) When one of the spouses neglects his or her
duties to the conjugal union, or;
2.) When one of the spouses commits acts
which tend to bring danger, dishonor or injury
to the other or to the family.
Note:
INJURY - is not economic or financial injury,
but
refers
to
physical,
emotional,
psychological or moral injury. (Sympio-Diy,
Handbook on the Family Code of the Phils.)

x x x material injury as used in


Article 116 does not refer to patrimonial
(economic) injury or damage, but to personal
(i.e. physical or moral) injury to one of the
spouses, since Article 116 lies in the chapter
concerning personal relations between
husband and wife. (Perez v. Tuason de
Perez. 109 Phil. 654)
Examples:
o If the wife is openly having an affair with a
younger man despite her subsisting
marriage;
o If the husband is a drunkard and beats his
wife when he comes home;
o If the wife spends all her time in the casino,
neglecting her children at home.
1.

o
o

3.

b)

c)

d)

Petition for receivership,


Petition for authority to be the sole
administrator of the community or
conjugal property subject to conditions
imposed by the court.
Declared the spouse as a prodigal, or
Separation of property, or

For neglect or acts tantamount to utter inability to


comply with the essential rights and obligations of
the marriages Declaration of nullity of
marriages based in psychological incapacity
under Art.36, Family Code.
Other acts committed which may give rise to
legal separation.

Q. Are there other legal recourse if the husband


unjustifiably prevents his wife from working or
exercising a legitimate profession, occupation or
business or activity?

A. The spouse may avail and file a complaint based


on Sec. 5 (e) no. 4 of RA 9262 (Anti-Violence Against
Women and Children Act) which provides for
criminal penalty of prison correctional (Sec 6, par. c),
for any act of preventing the woman in engaging in
any legitimate profession, occupation, business or
activity, or controlling her own money or properties or
solely controlling the conjugal or common money.

III. If the spouse committed acts or transactions without


the consent, or despite objection of the other spouse, will
this bind or make the community or conjugal property
liable?

Art. 73. Either spouse may exercise any legitimate


profession, occupation, business or activity without the
consent of the other. The latter may object only on valid,
serious, and moral grounds.
In case of disagreement, the court shall decide whether or
not:
(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the
objection or thereafter. If the benefit accrued prior
to the objection, the resulting obligation shall be
enforced against the separate property of the
spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith (117 a)

Old Rule in Civil Code- Article 117. The wife may


exercise any profession or occupation or engage in
business. However, the husband may object provided:
I. New Rule in Art.73 Family Code: Difference from the old
law in Civil Code:

Consent of the husband is no longer required for the


wife to practice a profession occupation, business or
activity;
The only ground for objection is based on valid;
serious and moral grounds; sufficiency of husbands
income is deleted.
The right to object is no longer limited to the husband,
but is now mutual. The wife may also object to the
husbands profession, occupation or business based
on valid, serious, and moral grounds.
In case of disagreement, the court shall decide; family
council in Civil Code Art. 117, is now abolished.

II. The profession, occupation or business or activity of


either spouse must be legitimate; lawful, honest and
moral.

For dissipation of the spouses community or


conjugal propertyo
o

2.

a)

BEFORE OBJECTIONo If the family has been benefitted prior to or


before the objection is made by the other
spouse, the resulting obligation incurred
shall be enforced against the community or
conjugal property.
AFTER OBJECTIONo If the profits or benefit accrued to the family
after the objection of the spouse, the
resulting obligation of the spouse who acted
without the consent of the other shall be
enforced only against his or her separate
properties.
CREDITORS RIGHTS:
o But in both instances above, the creditors
who acted in good faith are protected; they
are not prejudiced by the lack of consent by
the other spouse.
o The creditor can go after the absolute
community or conjugal properties, or the
separation properties of the spouse with
whom they contracted.

5. INCAPACITY TO CONSUMMATE OR IMPOTENCY: (Arts.


45, 47)
a)

What is meant by incapacity to consummate


marriage?
b) When must the incapacity to consummate or
impotency exist to be a ground for annulment of
marriage?
c) If the incapacity to consummate or impotency
occurred after the marriage, will this still serve as
valid ground for annulment of marriage?

NO. It must be pre-existing; AT THE TIME


OF MARRIAGE.

NOT AFTER the marriage, otherwise,


annulment cannot prosper based on this
ground.

See Anonymous v Anonymous, 49 NYS 2d


314, (p.322 Sta. Maria, Person and Family
Relations)
held civilly and criminally liable? (See Art. 350 RPR)
f ) What is there a prescription period for filling the action
for annulment based on these grounds? When is the
reckoned?
g ) Are these grounds for annulment of marriage subject
to ratification? How?
MARRIAGE (Art. 48)
a)

b)

c)

d)

Who is ordered by the court to appear on behalf of the


State in cases of annulment and declaration of nullity,
and for what reason or purpose?
Is failure to intervene by the Public Prosecutor in an
annulment case fatal, where the defendant strongly
contested the case than counsel and there was
heated litigation between the parties without any
evidence of conclusion? (Tuason v, CA, 256 SCRA
158; Maquilan v. Maquilan, 524 SCRA 167)
Can the court issue a decision or annulment or
declaration of nullity by mere stipulation of facts of
affidavits by the parties without formality of trial?
(Cardenas v Cardenas, 98 Phil. 73; Jocson v Robies,
22 SCRA 522; Roque v Encarnation as Phil. 643)
What is the legal effect of consequences if the parties
are able to obtain a decree of annulment or nullity
though their collision without other substantial
evidences presented to support the main ground for
annulment or declaration of nullity?

Annulment decree is absolutely VOID.

EFFECT OF ANNULMENT IN A CRIMINAL CASE FOR


BIGAMY
In a case for bigamy, the following matters or elements must
be shown by the prosecution:
1. That the offender has been legally married;
2. That the marriage has not been legally dissolved or, in case
his or her spouse is absent, the absent spouse could not yet
be presumed dead according to the Civil Code;
3. That he contracts a second or subsequent marriage; and

4. That the second or subsequent marriage has all the


essential requisites for validity.
There are two scenarios: (1) it is argued that the first marriage
is null and void or is a nullity; or (2) that the second marriage is
null and void. Lets discuss each scenario.
1. The first marriage is allegedly null and void.
In the case of Mercado vs. Tan (G.R. No. 137110, 1 August
2000), the accused argued that he already obtained a judicial
declaration of nullity of his first marriage under Article 36 of the
Family Code, thereby rendering it void ab initio. He argues that
a void marriage is deemed never to have taken place at all
and, hence, there is no first marriage to speak of. The accused
also quoted the commentaries of former Justice Luis Reyes
that it is now settled that if the first marriage is void from the
beginning, it is a defense in a bigamy charge. But if the first
marriage is voidable, it is not a defense.
The Supreme Court, in dismissing the argument of the
accused, stated:
In the instant case, petitioner contracted a second marriage
although there was yet no judicial declaration of nullity of his
first marriage. In fact, he instituted the Petition to have the first
marriage declared void only after complainant had filed a lettercomplaint charging him with bigamy. By contracting a second
marriage while the first was still subsisting, he committed the
acts punishable under Article 349 of the Revised Penal Code.
That he subsequently obtained a judicial declaration of the
nullity of the first marriage was immaterial. To repeat, the crime
had already been consummated by then. Moreover, his view
effectively encourages delay in the prosecution of bigamy
cases; an accused could simply file a petition to declare his
previous marriage void and invoke the pendency of that action
as a prejudicial question in the criminal case. We cannot allow
that.
2. The second marriage is allegedly null and void.
The effect of the judicial declaration of the nullity of a second or
subsequent marriage (on the ground of psychological
incapacity) on an individuals criminal liability for bigamy is a
novel issue, well, until 2004 when the Supreme Court decided
Tenebro vs. Court of Appeals (G.R. No. 150758, 18 February
18, 2004).
In that case, the accused argued that the declaration of the
nullity of the second marriage, which is an alleged indicator
that the second marriage lacks the essential requisites for
validity, retroacts to the date on which the second marriage
was celebrated. The accused then concluded that since the
third and fourth elements of bigamy are not present, he
should be acquitted.
The Supreme Court, however, decided against the accused
and dismissed his arguments, stating that:
Petitioner makes much of the judicial declaration of the nullity
of the second marriage on the ground of psychological

incapacity, invoking Article 36 of the Family Code. What


petitioner fails to realize is that a declaration of the nullity of the
second marriage on the ground of psychological incapacity is
of absolutely no moment insofar as the States penal laws are
concerned.

It is important to note that there are vigorous dissents (contrary


opinions) from other justices in Tenebro. The concurring
opinion of Justice Vitug is also worth reading.

As a second or subsequent marriage contracted during the


subsistence of petitioners valid marriage to Villareyes,
petitioners marriage to Ancajas would be null and void ab initio
completely regardless of petitioners psychological capacity or
incapacity. Since a marriage contracted during the subsistence
of a valid marriage is automatically void, the nullity of this
second marriage is not per se an argument for the avoidance
of criminal liability for bigamy. Pertinently, Article 349 of the
Revised Penal Code criminalizes any person who shall
contract a second or subsequent marriage before the former
marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means of a
judgment rendered in the proper proceedings. A plain reading
of the law, therefore, would indicate that the provision
penalizes the mere act of contracting a second or a
subsequent marriage during the subsistence of a valid
marriage.
xxx

It must be emphasized that due to the apparently conflicting


decisions on these issues, each case must be examined
separately. For instance, in Ty vs. Court of Appeals (not a
criminal case, though), the Supreme Court noted that the
bigamous marriage in the above-mentioned case of Mercado
vs. Tan was contracted during the effectivity of the Family Code
not the Civil Code. According to the Supreme Court in Ty:

Although the judicial declaration of the nullity of a marriage on


the ground of psychological incapacity retroacts to the date of
the celebration of the marriage insofar as the vinculum
between the spouses is concerned, it is significant to note that
said marriage is not without legal effects. Among these effects
is that children conceived or born before the judgment of
absolute nullity of the marriage shall be considered legitimate.
[28] There is therefore a recognition written into the law itself
that such a marriage, although void ab initio, may still produce
legal consequences. Among these legal consequences is
incurring criminal liability for bigamy. To hold otherwise would
render the States penal laws on bigamy completely nugatory,
and allow individuals to deliberately ensure that each marital
contract be flawed in some manner, and to thus escape the
consequences of contracting multiple marriages, while
beguiling throngs of hapless women with the promise of futurity
and commitment.
The Supreme Court affirmed the following penalty:
Under Article 349 of the Revised Penal Code, as amended, the
penalty for the crime of bigamy is prision mayor, which has a
duration of six (6) years and one (1) day to twelve (12) years.
There being neither aggravating nor mitigating circumstance,
the same shall be imposed in its medium period. Applying the
Indeterminate Sentence Law, petitioner shall be entitled to a
minimum term, to be taken from the penalty next lower in
degree, i.e., prision correccional which has a duration of six (6)
months and one (1) day to six (6) years. Hence, the Court of
Appeals correctly affirmed the decision of the trial court which
sentenced petitioner to suffer an indeterminate penalty of four
(4) years and two (2) months of prision correccional, as
minimum, to eight (8) years and one (1) day of prision mayor,
as maximum.

As to whether a judicial declaration of nullity of a void marriage


is necessary, the Civil Code contains no express provision to
that effect. Jurisprudence on the matter, however, appears to
be conflicting.
Originally, in People v. Mendoza, and People v. Aragon, this
Court held that no judicial decree is necessary to establish the
nullity of a void marriage. Both cases involved the same factual
milieu. Accused contracted a second marriage during the
subsistence of his first marriage. After the death of his first
wife, accused contracted a third marriage during the
subsistence of the second marriage. The second wife initiated
a complaint for bigamy. The Court acquitted accused on the
ground that the second marriage is void, having been
contracted during the existence of the first marriage. There is
no need for a judicial declaration that said second marriage is
void. Since the second marriage is void, and the first one
terminated by the death of his wife, there are no two subsisting
valid marriages. Hence, there can be no bigamy. Justice Alex
Reyes dissented in both cases, saying that it is not for the
spouses but the court to judge whether a marriage is void or
not.
In Gomez v. Lipana, and Consuegra v. Consuegra, however,
we recognized the right of the second wife who entered into
the marriage in good faith, to share in their acquired estate and
in proceeds of the retirement insurance of the husband. The
Court observed that although the second marriage can be
presumed to be void ab initio as it was celebrated while the
first marriage was still subsisting, still there was a need for
judicial declaration of such nullity (of the second marriage).
And since the death of the husband supervened before such
declaration, we upheld the right of the second wife to share in
the estate they acquired, on grounds of justice and equity.
But in Odayat v. Amante (1977), the Court adverted to Aragon
and Mendoza as precedents. We exonerated a clerk of court of
the charge of immorality on the ground that his marriage to
Filomena Abella in October of 1948 was void, since she was
already previously married to one Eliseo Portales in February
of the same year. The Court held that no judicial decree is
necessary to establish the invalidity of void marriages. This
ruling was affirmed in Tolentino v. Paras.
Yet again in Wiegel v. Sempio-Diy (1986), the Court held that
there is a need for a judicial declaration of nullity of a void

marriage. In Wiegel, Lilia married Maxion in 1972. In 1978, she


married another man, Wiegel. Wiegel filed a petition with the
Juvenile Domestic Relations Court to declare his marriage to
Lilia as void on the ground of her previous valid marriage. The
Court, expressly relying on Consuegra, concluded that:
There is likewise no need of introducing evidence about the
existing prior marriage of her first husband at the time they
married each other, for then such a marriage though void still
needs according to this Court a judicial declaration (citing
Consuegra) of such fact and for all legal intents and purposes
she would still be regarded as a married woman at the time
she contracted her marriage with respondent Karl Heinz
Wiegel; accordingly, the marriage of petitioner and respondent
would be regarded VOID under the law. (Emphasis supplied).
In Yap v. Court of Appeals, however, the Court found the
second marriage void without need of judicial declaration, thus
reverting to the Odayat, Mendoza and Aragon rulings.
At any rate, the confusion under the Civil Code was put to rest
under the Family Code. Our rulings in Gomez, Consuegra, and
Wiegel were eventually embodied in Article 40 of the Family
Code. Article 40 of said Code expressly required a judicial
declaration of nullity of marriage.
Art. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a
final judgment declaring such previous marriage void.
In Terre v. Terre (1992) the Court, applying Gomez, Consuegra
and Wiegel, categorically stated that a judicial declaration of
nullity of a void marriage is necessary. Thus, we disbarred a
lawyer for contracting a bigamous marriage during the
subsistence of his first marriage. He claimed that his first
marriage in 1977 was void since his first wife was already
married in 1968. We held that Atty. Terre should have known
that the prevailing case law is that for purposes of determining
whether a person is legally free to contract a second marriage,
a judicial declaration that the first marriage was null and void
ab initio is essential.
The Court applied this ruling in subsequent cases. In Domingo
v. Court of Appeals (1993), the Court held:
Came the Family Code which settled once and for all the
conflicting jurisprudence on the matter. A declaration of
absolute nullity of marriage is now explicitly required either as
a cause of action or a ground for defense. (Art. 39 of the
Family Code). Where the absolute nullity of a previous
marriage is sought to be invoked for purposes of contracting a
second marriage, the sole basis acceptable in law for said
projected marriage to be free from legal infirmity is a final
judgment declaring the previous marriage void. (Family Code,
Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99,
147, 148).
However, a recent case applied the old rule because of the
peculiar circumstances of the case. In Apiag v. Cantero, (1997)
the first wife charged a municipal trial judge of immorality for

entering into a second marriage. The judge claimed that his


first marriage was void since he was merely forced into
marrying his first wife whom he got pregnant. On the issue of
nullity of the first marriage, we applied Odayat, Mendoza and
Aragon. We held that since the second marriage took place
and all the children thereunder were born before the
promulgation of Wiegel and the effectivity of the Family Code,
there is no need for a judicial declaration of nullity of the first
marriage pursuant to prevailing jurisprudence at that time.
Similarly, in the present case, the second marriage of private
respondent was entered into in 1979, before Wiegel. At that
time, the prevailing rule was found in Odayat, Mendoza and
Aragon. The first marriage of private respondent being void for
lack of license and consent, there was no need for judicial
declaration of its nullity before he could contract a second
marriage. In this case, therefore, we conclude that private
respondents second marriage to petitioner is valid.

Can you legally force your spouse to live with and to love
you?
Summary:
The obligation to, live together, observe mutual, respect and
fidelity is prompted by the spontaneous, mutual love and
affection between husband and wife and cannot be enforced by
any legal mandate or court order.
The Family Code mentions the word love only twice. The
first mention of the word is found in Title III which
covers Articles 68 up to 73 on the rights and obligations of
spouses . The second mention of the word love is in Article
220 which states the rights and duties of parents towards their
unemancipated children. Paragraph (2) of the said article
states that among the duties of parents towards their children
is to give them love and affection, advice and counsel,
companionship
and
understanding.
Article 68 states, "The husband and wife are obliged to live
together, observe mutual love, respect and fidelity, and render
mutual help and support." Since living together and observing
mutual love, respect and fidelity are obligations under the law,
the question is, can a wife or husband legally compel his or her
spouse to come home and comply with such obligations?
The Supreme Court in the case of Ilusorio vs. IlusorioBildner (G.R. No. 139789 July 19, 2001 and G.R. No. 139808
July 19, 2001) stated among other things that
consortium or coverture (the obligation to, live
together, observe mutual, respect and fidelity) is prompted
by the spontaneous, mutual love and affection between
husband and wife and cannot be enforced by any legal
mandate
or
court
order.
The Ilusorio decision written by Justice Pardo revolved around
this issue:May a wife secure a writ of habeas corpus to
compel her husband to live with her in conjugal bliss? The
answer is no. Marital rights including coverture and living in

conjugal dwelling may not be enforced by the extra-ordinary


writ
of
habeas
corpus.
The Supreme Court as a final note in the Ilusorio
decision stated, No court is empowered as a judicial authority
to compel a husband to live with his wife. Coverture cannot be
enforced by compulsion of a writ of habeas corpus carried out
by sheriffs or by any other mesne process. That is a matter
beyond judicial authority and is best left to the man and
womans free choice.

"Irreconcilable differences not a ground for declaring a


marriage null and void
In the United States, almost all states have what is known as
no-fault divorce law. All that the petitioner has to do to get a
divorce is to state that the spouses have irreconcilable
differences. Here in the Philippines, our Supreme Court
in Juanita Carating-Siayngco vs. Manuel Siyangcoruled that
irreconcilable differences cannot be used as ground for
declaring a marriage null and void under Article 36
(psychological
incapacity)
of
the
Family
Code.
The

facts

of

the

and loveless marriage to her for twenty-two (22) years.


[4] In her Answer, petitioner Juanita alleged that respondent
Manuel is still living with her at their conjugal home in Malolos,
Bulacan; that he invented malicious stories against her so that
he could be free to marry his paramour; that she is a loving
wife and mother; that it was respondent Manuel who was
remiss in his marital and family obligations; that she supported
respondent Manuel in all his endeavors despite his
philandering; that she was raised in a real happy family and
had a happy childhood contrary to what was stated in the
complaint.
[5] The Family Court denied Manuels petition declaration of
nullity of his marriage to Juanita. On appeal, the Court of
Appeals reversed the lower courts decision and granted
Manuels petition. The Supreme Court however reversed the
CA and held that:
We are not downplaying the frustration and misery respondent
Manuel might be experiencing in being shackled, so to speak,
to a marriage that is no longer working. Regrettably, there are
situations like this one, where neither law nor society can
provide the specific answers to every individual problem.
The
Supreme
Court
ruling
(excerpts)

case

[1] Petitioner Juanita Carating-Siayngco and respondent


Manuel were married at civil rites on 27 June 1973 and before
the Catholic Church on 11 August 1973. After discovering that
they could not have a child of their own, the couple decided to
adopt a baby boy in 1977, who they named Jeremy.
[2] On 25 September 1997, or after twenty-four (24) years of
married life together, respondent Manuel filed for the
declaration of its nullity on the ground of psychological
incapacity
of
petitioner
Juanita.
He alleged that all throughout their marriage, his wife exhibited
an over domineering and selfish attitude towards him which
was exacerbated by her extremely volatile and bellicose
nature; that she incessantly complained about almost
everything and anyone connected with him like his elderly
parents, the staff in his office and anything not of her liking like
the physical arrangement, tables, chairs, wastebaskets in his
office and with other trivial matters; that she showed no respect
or regard at all for the prestige and high position of his office as
judge of the Municipal Trial Court; that she would yell and
scream at him and throw objects around the house within the
hearing of their neighbors; and that she cared even less about
his professional advancement as she did not even give him
moral
support
and
encouragement.
[3] Manuel further alleged that Juanitas psychological
incapacity arose before marriage, rooted in her deep-seated
resentment and vindictiveness for what she perceived as lack
of love and appreciation from her own parents since childhood
and that such incapacity is permanent and incurable and, even
if treatment could be attempted, it will involve time and
expense beyond the emotional and physical capacity of the
parties; and that he endured and suffered through his turbulent

[1] From the totality of the evidence adduced by both parties,


we have been allowed a window into the Siayngcos life and
have perceived therefrom a simple case of a married couple
drifting apart, becoming strangers to each other, with the
husband consequently falling out of love and wanting a way
out.An unsatisfactory marriage, however, is not a null and void
marriage. Mere showing of irreconcilable differences and
conflicting personalities in no wise constitutes psychological
incapacity. As we stated in Marcos v. Marcos:
Article 36 of the Family Code, we stress, is not to be confused
with a divorce law that cuts the marital bond at the time the
causes therefore manifests themselves. It refers to a serious
psychological illness afflicting a party even before the
celebration of the marriage. It is a malady so grave and so
permanent as to deprive one of awareness of the duties and
responsibilities of the matrimonial bond one is about to
assume.
We are not downplaying the frustration and misery respondent
Manuel might be experiencing in being shackled, so to speak,
to a marriage that is no longer working. Regrettably, there are
situations like this one, where neither law nor society can
provide the specific answers to every individual problem.
[2] Whether or not psychological incapacity exists in a given
case calling for the declaration of the nullity of the marriage
depends
crucially
on
the
facts
of
the
case.
[3] The burden of proof to show the nullity of marriage belongs
to the plaintiff. Any doubt should be resolved in favor of the
existence and continuation of the marriage and against its
dissolution and nullity. This is rooted in the fact that both our
Constitution and our laws cherish the validity of marriage and
unity
of
the
family.

[4] The root cause of the psychological incapacity must be (a)


medically or clinically identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly explained in the
trial
courts
decision.
Such illness must be grave enough to bring about the disability
of the party to assume the essential obligations of marriage.
Thus, mild characteriological peculiarities, mood changes,
occasional emotional outbursts cannot be accepted as root

causes. The illness must be shown as downright incapacity or


inability, not a refusal, neglect or difficulty, much less ill will.

Potrebbero piacerti anche