LEGAL SEPARATION: Who can ask for legal separation? LEGAL SEPARATION: When may petition be filed?

Contreras vs. Macaraig PONENTE: Dizon DATE: May 29, 1970 FACTS: March 16, 1952: Elena Contreras married Cesar Macaraig Cesar was employed at MICO Offset owned by Elenas father, where he met Lily Ann Alcala After elections of 1961, Cesar resigned at MICO to be a special agent at Malacanang. He was rarely home thereafter due to series of confidential missions September 1962: Avelino Lubos, the family driver, saw Cesar living with Lily Ann October 1962: Elena refrained from verifying Lubos report in her desire not to anger Cesar April 1963: rumors that Cesar was seen with a woman already on the family way May 1963: Elena again refrained from asking so as not to precipitate a quarrel and drive Cesar away Elena received reports that Lily Ann had already given birth. To verify the report Elena sent Mrs. Felicisima Antioquia, her fathers employee Felicisima saw Cesar carrying a baby in his arms. She went to the parish priest and inquired about the child of Cesar and Lily Ann Lucilo Macaraig, Cesars father, interceded to convince Cesar to go back to his wife, but to no avail. Mrs. Enriqueta Majul, Cesars older sister, arranged a meeting between Lily Ann and Elena, and Lily Ann said that she was willing to give up Cesar but Cesar did not want to give up the relationship. December 1963: Elena with her 2 children went to see Cesar and to beg him to return to his legitimate family but Cesar said that he could no longer leave Lily Ann and refused to return. December 14, 1963: Elena filed the petition for legal separation CFI: dismissed the petition because the 1 year period to file action has already lapsed o At the time Elena acquired information, which can be reasonably relied upon as true, that her husband is livingin concubinage with another woman, the 1-year period should be deemed to have started even if the wife shall not then be in possession of proof sufficient to establish the concubinage before a court of law. ISSUE: Whether the period of one year provide for in Article 102 of the Civil Code should be counted from September 1962 or from December 1963 HELD/DECISION: From December 1963 RATIO: The only time Elena really became cognizant of the infidelity of her husband was in the early part of December 1963 when she went to see Cesar and beg for his return. It is only on December 1963 that Cesar admitted that he was living with Lily Ann and would not return to his legitimate family. MATUBIS v. PRAXEDES No. L-11766 Oct 25, 1960 Plantiff and appellant: Socorro Matubis Defendant and appellee: Zoilo Praxedes Nature of the Case: Appeal from a judgment of the CFI of Camarines Sur Ponente: Paredes, J. FACTS: 1) Plaintiff Socorro filed a complaint for legal separation and change of surname against her husband defendant Zoilo Praxedesalleging abandonment ad concubinage 2) Defense interposed that it was plaintiff who left the conjugal home 3) January 10, 1943: married legally at iriga, cam sur 4) For failure to agree on how they should live as husband and wife, the couple on may 30, 1944 agreed to live separately from each other until the present 5) April 3, 1948: they entered into an agreementboth relinquishing their rights over the other as legal husband and wife (including support, getting another mate and claims) 6) January 1955: defendant began cohabiting with one Asuncion Rebuladosept 1, 1955gave birth to a child CFI: holding that acts of defendant constituted concubinage, a ground for legal separation. It however, dismissed the complaint REASON: plaintiff became aware of the illegal cohabitation of her husband in Jan 1955complaint was fied on april 24, 1956filed out of time and for that reason the action is barred

ART 100 of the NCC: legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery of concubinagein here we see that plaintiff consented to the concubinage of her husbandher consent is clearhaving consented she cannot claim legal separation DECISION OF SC: the decision appealed from is in accordance with the evidence and the law on the matter. The same is AFFIRMED. RATIO: 1) The complaint was filed outside the periods provided for by Art 102 of the NCC: an action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred 2) Condonation and consent on the part of the plaintiff are necessarily the import of the agreement (par 6 (b)) the condonation is not only implied by expressed 3) Art 100 of the NCC: having condoned and or consented in writing, the plaintiff is now undeserving of the courts sympathy

SOMOSA-RAMOS v. VAMENTA No. L- 34132 July 29, 1972 Petitioner: Lucy Somosa- Ramos Respondents: Hon. Cipriano Vamenta Jr. (CFI, Negros oriental) and Clemente G. Ramos Nature of the case: Original petition in the SC. Certiorari Ponente: Fernando, J. ISSUE: WON art 103 of the CC prohibiting the hearing of an action for legal separation before the lapse of six months from the filing of the petition would likewise preclude the court from acting on a motion for preliminary mandatory injunction applied for as an ancillary remedy for such suit FACTS: 1) The petitioner filed in the sala of respondent judge for legal separation, concubinage as the ground and an attempt by him against her life being alleged 2) She likewise sought of a writ of preliminary mandatory injunction for the return to her of what she claimed to ber her paraphernal and exclusive property, then under the administration and management of respondent Clemente Ramos 3) Opposition to this hearing invoking Art 103 of the CCif motion is heard, the prospect of reconciliation of the spouses would become dim CFI: AFFIRMATIVE. Ordered the suspension , upon the plea of the other respondent, the husband, of the hearing on a motion for a writ of preliminary injunction filed by petition at the same time the suit for legal separation was instituted DECISION OF THE SC: the plea of petitioner for a writ of certiorari is GRANTED and the order of the respondent court suspending the hearing on the petition for writ of preliminary mandatory injunction is SET ASIDE. Respondent judge is DIRECTED to proceed without delay to hear the motion for preliminary mandatory injunction RATIO: 1) Holding of this court that Art 10 of the CC is not an absolute bar to the hearing of a motion for preliminary injunction prior to the expiration of the 6-month period 2) A suit for legal sep is something elsethe hope that the parties may settle their differences is not all together abandoned-hence the interposition of a 6-month period before an action for legal sep is to be triedthe court should remain passive at this time; it is precluded from hearing the suit 3) There is then some plausibility for the view of the lower court that an ancillary motion such as one for preliminary mandatory injunction 4) After the filing of the petition for legal separation, the spouse shall be entitled to live separately from each other and manage their respective property 5) The husband shall continue to manage the conjugal partnership property but if the court deems it proper, it may appoint another to manage said property, in which case the administrator shall have the same rights and duties as a guardian and shall not be allowed to dispose of the income or of the capital except in accordance with the orders of the court

6)

7)

8)

9)

There is a recognition that the question of management of their respective property need not be left unresolved even during the 6-month period There is justification then for the petitioners insistence that her motion for preliminary injunction should not be ignored by the lower courtto prevent husband for continually managing her paraphernal properties The period of 6 months is evidently intended as a cooling off periodbut this practical expedient, necessary to carry out legislative policy, does not have the effect of overriding other provisions such as the determination of the custody of the children and alimony and support pendent lite according to the circumstances Thus there can be no more impediment for the lower court acting on the motion of petitioner for issuance of a writ of preliminary mandatory injunction

2)

wife (according to law); plaintiff could not acquire a residence in Iloilo before the marriage between her and the defendant was legally dissolved Claims art 1412 and 1413: husband is the manager of the conjugal partnershipempowered t alienate and encumber the conjugal property without the consent of wifeno right of her was violated

DELA VINA v. VILLAREAL AND GEOPANO No. 13982 July 31, 1920 Petitioner: Diego dela Vina Respondents: Antonio Villareal (Auxiliary Judge of FI) and NArcisa Geopano Nature of the case: original action in the SC. Certiorari POnente: Johnson, J. FACTS: 1) The purpose of the action is to obtain an order declaring: a) That the respondent (Villareal) has no jurisdiction to take cognizance of a certain action for divorce instituted by Narcisa Geopano against her husband b) That the said respondent judge has exceeded his power and authority in issuing a preliminary injunction against the said petitioner prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action c) That all proceedings theretofore had in said court were null and void 2) Narcisa filed a complaint (sept 17, 1917) against Dela Vina Married in the year 1888 in negros oriental Had nine children and lived together They had acquired property, real and personal (P300,000) all of which are under the administration of Dela VIna Since 1913 the defendant had been committing acts of adultery with ANA CALOG, sustaining illicit relations with her and having her as his concubine Because of this she ejected defendant from the conjugal home The defendant had no means of support and was living only at the expense of one of her daughters 3) She was praying for: a) Decree of divorce b) Partition of the conjugal property c) Alimony pendent lite in the sum of P400 per month d) That a preliminary injunction be issued against the defendant restraining and prohibiting him to alienate or encumber the property which belonged to the conjugal partnership 4) Petitioner opposed the said motiondemurred the complaint upon the ground that the court had no jurisdiction to take cognizance of the cause, nor over the person of the defendant

DECISIONS OF SC: petition is DENIED RATIO: 1) General principle, the domicile of husband is domicile of wifetheoretic identity of person and of interestbut not an absolute rule though a presumption 2) The wife may acquire another and separate domicile from that of her husband where the theoretical unity of husband and wife is dissolved as it is by the institution of divorce proceedings or where the husband has given cause for divorce; or where there is separation of the parties by agreement or a permanent separation due to desertion of the wife by the husband or attributable to cruel treatment on the part of the husband; or where there has been a forfeiture by the wife of the benefit of the husbands domicile 3) The maxim that the domicile of the husband is the domicile of the wife cannot be applied to oust the court of its jurisdiction neither from parity of reasons can it give jurisdiction 4) When the tacit consent of the husband and other circumstances justify it, for the purpose of determining jurisdiction, the habitual residence of the woman should be considered as her domicile where her right may be exercised in accordance with art 63. 5) Furthermore, in this case there is no longer an identity of persons and of interest between the husband and the wifetherefore, the law allowed her to acquire a separate residence 6) Sec 164 of Act no 190: A preliminary injunction may be granted when it is established that: a) Plaintiff is entitled to the relief demanded b) The commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff c) Defendant is doing or threatenssome act probably in violation of the plaintiffs rights 7) The husband should not injure but promote the interest of the wifewhen the harmonious relationship ceases, the wife seeks to dissolve the marriage and to partition conjugal property, it is but just and proper, in order to protect the interests of the wife that the husbands power of administration be curtailed during the pendency of the action 8) In this case the right the plaintiff is seeking after is not the right to administer the conjugal property but the RIGHT TO SHARE in the conjugal partnership 9) The power to grant preliminary injunctions, both preventive and mandatory, is a logical and necessary incident of the general powers conferred upon the CFIs as courts of record of general and unlimited original jurisdiction both legal and equitable 10) In 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 the latter from alienating or encumbering any part of the conjugal property during the pendency of the action 11) CFI judge had jurisdiction to hear and determine the action for divorce and he did not exceed his power and authority in issuing the preliminary injunction against the defendant

TC: overruled the defendants demurrer, and granted the preliminary injunction prayed for by the plaintiff QUESTIONS/ISSUES: 1) May a married woman ever acquire a residence or domicile separate from that of her husband during the existence of the marriage? 2) In an action for divorce, brought by the wife against her husband, in which the partition of the conjugal property is also prayed for, may the wife obtain a preliminary injunction against the husband restraining and prohibiting him from alienating or encumbering any part of their conjugal property during the pendency of the action PETITIONER CONTENDS: 1) CFI of Iloilo had no jurisdiction: defendant was a resident of Negros Oriental and plaintiff as wife of defendant must also be considered resident of the same provincedomicile of husband is domicile of BUGAYONG v. GINEZ No L-10033 Dec 28, 1956 Plaintiff and appellant: Benjamin BUgayong Defendant and appellee: Leonila Ginez Nature of the case: Appeal from an order of the CFI of Pangasinan POnente: Felix, J. FACTS: 1) Benjamin bugayong (serviceman in the US) married to Leonila Ginez on aug 27, 1949 2) Lived with the sisters of the husband, but before the latter left to report back to duty, he and his wife came to an agreement that leonila would stay with his sisters who later moved to sampaloc, manila

3)

July 1951: Benjamin BUgayong began receiving letters from valeriana polnagco and other anonymous writers informing him of alleged acts of infidelity of wife 4) Plaintiff admitted that his wife also informed him by letter that a certain Eliong kissed her 5) Oct 1951: he sought advice of the navy chaplain as to the propriety of a legal separation between him and his wife on account of latters alleged acts of infidelity and he was directed to consult the navy legal dept 6) August 1952: went to Pangasinan and sought his wife whom he found in defendants grandmothers house (Mrs. Malalang) 7) She came along with him and proceeded and stayed for 2 nights and one day as husband and wife in a cousin of plaintiff-husband 8) Benjamin tried to verify from his wife the truth of the info he received that she committed adultery but wife packed up and lefttook as confirmation 9) Plaintiff exerted efforts to locate her and failing to find her went to Ilocos norte 10) Nov 18, 1952: filed complaint for legal separation against wife (CFI Pangasinan) 11) Wife denies the averments and setting up affirmative defenses 12) Motion to dismiss predicated on the ff grounds: a) assuming truth of allegations cause of action is barred by the statute of limitations b) the acts charged have been condoned by the plaintiffhusband c) the complaint failed to state a sufficient cause of action CFI: ordered the dismissal of the complaintground of condonation (ART 100); motion for reconsideration denied CA: ISSUE: Do the husbands attitude of sleeping with his wife for 2 nights and 1 day despite his alleged belief that she was unfaithful to him amount to a condonation of her previous and supposed adulterous acts? DECISION OF SC: order appealed from is AFFIRMED RATIO: 1) CONDONATION: forgiveness of a marital offense constituting a ground for legal separation; conditional forgiveness or remission by a husband or wife of a matrimonial offense which the latter has committed 2) The facts appearing on record are far from sufficient to establish the charge of adultery or infidelity amounting to adultery 3) Consider plaintiffs line of conduct under the assumption that he really believed that his wife is guilty of adultery looked for wife lived with her for 2 nights and one day 4) Detailed examination of the testimony of plaintiff clearly shows that there was a condonation on the part of the husband 5) Condonation is implied from sexual intercourse after knowledge of the other infidelity (Shackleton v. Shackleton)it implies forgiveness 6) Condition is not to commit the offense againa breach of condition will revive the original offense as a ground for divorce 7) The conduct of the plaintiff despite his belief that wife was unfaithful, deprives him of any action for legal separation against the wife because his said act comes within the restriction of art 100 of the CC 8) GENERAL RULE: AMJUR: any cohabitation with the guilty party, after the commission of the offense and with the knowledge or belief on the part of the injured party of its commission will amount to conclusive evidence of condonationbut this presumption may be rebutted by evidence

3) Brown learned of wifes misconduct iin 1945 4) Lived separately and later executed document liquidating their conjugal partnership and assigning certain properties to the erring wife as her share 5) complaint prayed for: a) confirmation of the liquidation agreement; b) for custody of children issued of the marriage; c) that the defendant be declared disqualified to succeed the plaintiff d) other remedy as might be just and equitable CFI: declared the wife in default for failure to answer in due time despite service summons directed the City Fiscal to check collusion CITY FISCAL INVESTIGATON: 1) Brown after liberation had lived martially with another woman and had begotten children by her 2) CFI: denied the legal separation asked on the ground that while wifes adultery was established, Brown had incurred in a misconduct of similar nature that barred his right of action under Art 100 of the NCConly innocent spouse can claim legal sep; there had been consent and connivance and Browns action had prescribed under art 102 of the same Code (one year from date of cognizance of cause for legal sep)learned of wifes adultery (1945) but only filed action in 1955 BROWN CONTENDS: Fiscal should only check collusion but in actuality intervened for Juanita Yambao not the state DECISION OF SC: decision appealed from is AFFIRMED RATIO: 1) collusion in matrimonial cases being the act of married persons in procuring a divorce by mutual consent 2) it was legitimate for fiscal to bring to light any circumstance that could give rise to the inference that the wifes default was calculated or agreed upon, to enable appellant to obtain the decree of legal separation that he sought w/o regard to the legal merits of his casesuch as Browns cohabitation with another woman other than his wife 3) this bars him from filing the complaint for legal sep (art 100 of CConly innocent spouse) 4) ART 101- intervention of state attorneys in case of uncontested proceedings for legal sep and annulment of marriagesto emphasize that marriage is more than a mere contractit is a social institution in which the state is vitally interested, so that its continuation or interruption can not be made to depend upon the parties themselves 5) Appellants action was already barredBrown did not petition for legal separation proceedings until ten years after he learned of wifes adultery 6) The courts can take cognizance of prescription as a defense even though not raised by wifesince this involves public interest and it is a policy of our law that no such decree be issued if any legal obstacles appear upon record 7) Two established statutory grounds: commission of similar offense and prescriptionunnecessary to delve into the case and check on connivance and condonation on his part

1. RECRIMINATON Art 56 (4), FC CASE: BROWN v. YAMBAO No L- 10699 October 18, 1957 Plaintiff and appellant: William H. Brown Defendant and appellee: Juanita Yambao Nature of the case: Appeal from the judgment of CFI of Manila Ponente: Reyes, JBL, J. FACTS: 1) July 14, 19555: William filed suit to obtain legal separation from Juanita: ground: adultery 2) while he was interned by the Japanese invaders from 1942 to 1945 at UST internment camp, his wife engaged in adulterous relations with Carlos Fieldshe begot a baby girl

OCAMPO v. FLORENCIANO No L-13553 feb 23, 1960 Petitioner: Jose de Ocampo Respondent: Serafina Florenciano Nature of the case: petition for review by certiorari of decision of the CA Ponente: Bengzon, J. FACTS; 1) action for legal sep by jose de ocampo against serafina his wife: ground: adultery 2) April 5, 1938: marriage 3) March 1951: adultery by serafina with jose arcalas 4) June 1951; wife sent to manila to study beauty culture but discovered she was having affairs with other men as well 5) June 1952: they lived separatelyshe left plaintiff after finishing course 6) June 1955: nelson orzame 7) Defendant made no answer the court defaulted her (art 101)directed the provincial fiscal to

8)

investigate whether or not collusion existed between the parties Defendant manifested her conformity to filing of complaint by husband for legal sep provided she is not charged with adultery in a criminal action

CFI: dismissed the casethere was confession of judgment plus condonation or consent to the adultery and prescription CA: husbands right to legal sep on account of defendants adultery with jose arcalas had prescribednot filed within one year from march 1951 when plaintiff discovered her infidelity

DECISION OF SC: reversed the appealed decision and decree a legal separation between these spouses, with all the consequent facts RATIO: 1) granted certiorari to consider the application of art 100 (innocent spouse) and 101 (no decree of legal sep shall be promulgated upon a stipulation of facts or by confession of judgment non appearancecollusion to be checked by fiscal or prosecuting attorney) of NCC 2) wifes conformity to complaint by husband-interpreting the facts virtually to mean a confession of judgment the Appellate court declared that under Art 101 legal separation could not be decreedthis article merely prohibits a decree of separation upon a confession of judgment 3) CONFESSION OF JUDGMENT usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiffs demandthis did not occur 4) Even if statement of defendant contributed practically a confession of judgmentthere is evidence of adultery independently of such statementthe decree may and should be granted since it would not be based on her confession, but upon evidence presented by the plaintiff 5) What the law prohibits is a judgment based exclusively or mainly on defendants confession 6) The mere circumstance that defendant told the fiscal that she liked also to be legally separated from her husband is no obstacle to be successful prosecution of the action 7) When the court is informed that defendant equally desires the separation and admitted the commission of the offense, it should be doubly careful lest a collusion exists 8) CA did not find collusion 9) COLLUSIONmeans agreement; there would be collusion if the parties had arranged to make it a appear that a matrimonial offense had been committed although it was not or if the parties had connived to bring about a legal sep even in the absence pf grounds therefore 10) Collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it 11) Plaintiffs failure actively to search for defendant and take her home constituted condonation or consent to her adulterous relations with orzameit was not her duty to search for her to bring her home. Hers was the obligation to return