Persons CD 4

R.A.
6955, An Act to Declare Unlawful

the Practice of Matching Filipino Women
for Marriage to Foreign Nationals
R.A. 9208, Anti-Trafficking in Persons Act
of 2003, as amended by RA 10364
VI.
THE LAW ON SEPARATION OF THE SPOUSES

A.
Concepts of separation & divorce
Benedicto v. De la Rama 3 Phil 34

Facts:
ON July 5, 1902, the CFI entered a final judgment
decreeing a divorce to the plaintiff (Agueda
Benedicta dela Rama) on the ground of husbands
adultery and ordered Esteban Dela Rama to pay
her P81,042.76 due her as her unpaid share of the
property belonging to the conjugal partnership, as
well as the sum of P3,200 as an allowance for
their support.
Issue: Whether the CFI has jurisdiction to hear
divorce cases?
Ruling:
The partidas recognized adultery as a ground for
divorce. Therefore, according to the civil as well
as the canonical law in force here on August
13, 1898, the commission of that offense gave the
injured party the right to a divorce.
That provision of the substantive civil law was not
repealed by the change of sovereignty. The
complete
separation
under
the
American
Government of church and state, while it changed
the tribunal in which this right should be enforced,
could not affect the right itself.
The fact that the ecclesiastical courts no longer
exercise such power is not important. The
jurisdiction formerly possessed by them is now
vested in Courts of First Instance, by virtue of Act
No. 136. Section 56, first and fifth paragraphs of
that act, provides that "Courts of First Instance
shall have original jurisdiction, first, in all civil
actions in which the subject of litigation is not
capable of pecuniary estimation; fifth, . . . and in
all such special cases and proceedings as are not
otherwise provided for."
The result is (1) that Courts of First instance
have jurisdiction to entertain a suit for divorce; (2)
that the only ground therefor is adultery; (3)
that an action on that ground can be maintained
by the husband against the wife, or by the wife
against the husband; and (4) that the decree does
not dissolve the marriage bond.
The Court of First Instance of Iloilo, therefore,

committed no error in assuming jurisdiction of this
case. A motion for a new trial having been made
in the court below on the ground that the findings
of fact contained in the decision were not justified
by the evidence, it becomes necessary to
examine that evidence. The adultery of the
defendant was duly proved.
The finding that the plaintiff had not committed
adultery is, however, plainly and manifestly
against the weight of the evidence. For the sin of
each one of them is of itself a bar to an
accusation against the other.
Our conclusion is that neither one of the parties
is entitled to a divorce. The result makes it
unnecessary to consider that part of the
judgment which relates to the settlement of the
conjugal partnership.
1.
Separation in fact, FC 238-248, 101(3)
TITLE XI
SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW
Chapter 1. Prefatory Provisions
Art. 238. Until modified by the Supreme Court,
the procedural rules provided for in this Title
shall apply as regards separation in fact between
husband and wife, abandonment by one of the
other, and incidents involving parental
authority. (n)
Chapter 2. Separation in Fact
Art. 239. When a husband and wife are
separated in fact, or one has abandoned the
other and one of them seeks judicial
authorization for a transaction where the
consent of the other spouse is required by law
but such consent is withheld or cannot be
obtained, a verified petition may be filed in court
alleging the foregoing facts.
The petition shall attach the proposed deed, if
any, embodying the transaction, and, if none,
shall describe in detail the said transaction and
state the reason why the required consent
thereto cannot be secured. In any case, the final
deed duly executed by the parties shall be
submitted to and approved by the court. (n)
Art. 240. Claims for damages by either spouse,
except costs of the proceedings, may be
litigated only in a separate action. (n)
Art. 241. Jurisdiction over the petition shall, upon
proof of notice to the other spouse, be exercised
by the proper court authorized to hear family

cases, if one exists, or in the regional trial court
or its equivalent sitting in the place where either
of the spouses resides. (n)
Art. 242. Upon the filing of the petition, the court
shall notify the other spouse, whose consent to
the transaction is required, of said petition,
ordering said spouse to show cause why the
petition should not be granted, on or before the
date set in said notice for the initial conference.
The notice shall be accompanied by a copy of
the petition and shall be served at the last
known address of the spouse concerned. (n)
Art. 243. A preliminary conference shall be
conducted by the judge personally without the
parties being assisted by counsel. After the
initial conference, if the court deems it useful,
the parties may be assisted by counsel at the
succeeding conferences and hearings. (n)
Art. 244. In case of non-appearance of the
spouse whose consent is sought, the court shall
inquire into the reasons for his failure to appear,
and shall require such appearance, if
possible. (n)
Art. 245. If, despite all efforts, the attendance of
the non-consenting spouse is not secured, the
court may proceed ex parte and render
judgment as the facts and circumstances may
warrant. In any case, the judge shall endeavor to
protect the interests of the non-appearing
spouse. (n)
Art. 246. If the petition is not resolved at the
initial conference, said petition shall be decided
in a summary hearing on the basis of affidavits,
documentary evidence or oral testimonies at the
sound discretion of the court. If testimony is
needed, the court shall specify the witnesses to
be heard and the subject-matter of their
testimonies, directing the parties to present said
witnesses.
Art. 247. The judgment of the court shall be
immediately final and executory.(n)
Art. 248. The petition for judicial authority to
administer or encumber specific separate
property of the abandoning spouse and to use
the fruits or proceeds thereof for the support of
the family shall also be governed by these rules.
Art. 101. (3)
A spouse is deemed to have abandoned the
other when her or she has left the conjugal
dwelling without intention of returning. The
spouse who has left the conjugal dwelling for a
period of three months or has failed within the
same period to give any information as to his or
her whereabouts shall be prima facie presumed
to have no intention of returning to the conjugal

dwelling
Villanueva v Chiong, GR 159889, June 5, 2008

FACTS OF THE CASE:
Florentino and Elisera Chiong were married
sometime in January 1960 but have been
separated in fact since 1975.
During their marriage, they acquired Lot No. 997D-1 situated at Poblacion, Dipolog City and
covered by Transfer Certificate of Title (TCT) No.
(T-19393)-2325, issued by the Registry of Deeds
of Zamboanga del Norte. Sometime in 1985,
Florentino sold the one-half western portion of the
lot to petitioners for P8,000, payable in
installments.
Thereafter, Florentino allowed petitioners to
occupy the lot and build a store, a shop, and a
house thereon. Shortly after their last installment
payment on December 13, 1986, petitioners
demanded from respondents the execution of a
deed of sale in their favor. Elisera, however,
refused to sign a deed of sale.
ISSUES:
(1) Is the subject lot an exclusive property of
Florentino or a conjugal property of respondents?
(2) Was its sale by Florentino without Elisera's
consent valid?
RULING:
1. That the lot belongs exclusively to Florentino
because of his separation in fact from his wife,
Elisera, at the time of sale dissolved their property
relations, is bereft
of merit.
Respondents'
separation in fact neither affected the conjugal
nature of the lot nor prejudiced Elisera's interest
over it. Under Article 178 of the Civil Code, the
separation in fact between husband and wife
without judicial approval shall not affect the
conjugal partnership. The lot retains its conjugal
nature. All property acquired by the spouses
during the marriage is presumed to belong to the
conjugal partnership of gains, unless it is proved
that it pertains exclusively to the husband or to
the wife. Petitioners' mere insistence as to the
lot's supposed exclusive nature is insufficient to
overcome such presumption when taken against
all the evidence for respondents.
2. The sale by Florentino without Elisera's consent
is not, however, void. We held that without the
wifes consent, the husbands alienation or
encumbrance of conjugal property prior to the
effectivity of the Family Code on August 3,
1988 is not void, but merely voidable Articles 166

and 173 of the Civil Code. Therefore, the effect of
annulment of the contract is to wipe it out of
existence, and to restore the parties, insofar as
legally and equitably possible, to their original
situation before the contract was entered into.
Strictly applying Article 1398 to the instant case,
petitioners should return to respondents the land
with its fruits and respondent Florentino should
return to petitioners the sum ofP8,000, which he
received as the price of the land, together with
interest thereon. On the matter of fruits and
interests, we take into consideration that
petitioners have been using the land and have
derived benefit from it just as respondent
Florentino has used the price of the land in the
sum of P8,000. Hence, if, as ordered by the lower
court, Florentino is to pay a reasonable amount or
legal interest for the use of the money then
petitioners should also be required to pay a
reasonable amount for the use of the land. Under
the particular circumstances of this case,
however, it would be equitable to consider the
two amounts as offsetting each other.
3. Absolute divorce
(a) Divorce under the Family Code
paragraph 2
- FC 26,
Art. 26.(2)
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry
under Philippine law. (As amended by Executive
Order 227)
Gorayeb v Hashim, 50 Phil. 2
Nature: Appeal by way of certiorari to the
decision of Court of Appeals.
Facts: Plaintiff Gorayeb and defendant Hashim
were married in Syria. They were separated in fact
for more than twelve years.
The Plaintiff instituted civil case No. 19115 in the
CFI to compel the defendant to pay her alimony.
2.
Agreements to separate, FC 1, NCC 221

(1)
Article 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.
Art. 221. The following shall be void and of no

effect:
(1) Any contract for personal separation between
husband and wife;
The Court of First Instance on December 24, 1923

decided in favour of the Plaintiff awarding her
alimony of P500.00 per month While the decision
of the plaintiffs claim of support was still
undetermined, the defendant went to the United
States where he was able to procure a divorce
decree from the State of Nevada.
He went back to the Philippines and the plaintiff
filed a motion in civil case No. 19115,
alleging that the defendant had failed to pay the
pension of P500 per month, which had been
awarded to her in the decision of December 24,
1923, and praying that he be adjudged to be in
contempt of court and that he be fined and
sentenced to imprisonment for six months and
until he should comply with the order.
As defense ,the defendant pleaded the divorce
decree from Nevada, asserting that because of
the such decree his marriage to the plaintiff
was already
dissolved
therefore
releasing him from the judgment of the lower
court . The Court of appeals decided that despite
the divorce decree the defendant should continue
paying the plaintiff P100 per month.
Issue:
Espinosa v Omana, A.C. No. 9081, October, 12,

2011
(see above page _______)
1.Whether or not the foreign decree of divorce

should be recognized by Philippine court.
2.Whether or not there is still a need of an
affirmative action or a special proceeding in order
forour courts to recognize a foreign decree of
divorce.
(d) Acts of imprecation (li'an);

(e) Redemption by the wife (khul');
(f) Exercise by the wife of the delegated right to
repudiate (tafwld); or
(g) Judicial decree (faskh).
Ruling:
Issue #1.
No.In Ramirez vs. Gmur (42 Phil., 855)
xxx.
the court of a country in which neither of the
spouses isdomiciled and to which one or both of
them may resort merely for the purpose of
obtaining a divorcehas no jurisdiction to
determine their matrimonial status; and a divorce
granted by such a court is notentitled to
recognition
elsewhere.
The
voluntary
appearance of the defendant before such a
tribunaldoes not invest the court with jurisdiction.
In the same case this court went on to say: "It
follows that, togive a court jurisdiction on the
ground of the plaintiff's residence in the State
or country of the judicialforum, his residence must
be bona fide. If a spouse leaves the family
domicile and goes to another Statefor the sole
purpose of obtaining a divorce, and with no
intention of remaining, his residence there isnot
sufficient to confer jurisdiction on the courts of
that State. This is especially true where the cause
of divorce is one not recognized by the laws of the
State of his own domicile.Issue
# 2. No
Somera v. Pilapil, 174 SCRA 663

Art. 46. Divorce by talaq. (1) A divorce by

talaq may be effected by the husband in a single
repudiation of his wife during her non-menstrual
period (tuhr) within which he has totally abstained
from carnal relation with her. Any number of
repudiation made during one tuhr shall constitute
only one repudiation and shall become
irrevocable after the expiration of the prescribed
'idda.
(2) A husband who repudiates his wife, either for
the first or second time, shall have the right to
take her back (ruju) within the prescribed 'idda by
resumption of cohabitation without need of a new
contract of marriage. Should he fail to do so, the
repudiation shall become irrevocable (Talaq bain
sugra).
Art. 47. Divorce by Ila. Where a husband
makes a vow to abstain from any carnal relations
(ila) with his wife and keeps such ila for a period
of not less than four months, she may be granted
a decree of divorce by the court after due notice
and hearing.
Art. 48. Divorce by zihar. Where the husband
has injuriously assimilated (zihar) his wife to any
of his relatives within the prohibited degrees of
marriage, they shall mutually refrain from having
carnal relation until he shall have performed the
prescribed expiation. The wife may ask the court
to require her husband to perform the expiation
or to pronounce the a regular talaq should he fail
or refuse to do so, without prejudice to her right
of seeking other appropriate remedies.
Art. 49. Divorce by li'an. Where the husband
accuses his wife in court of adultery, a decree of
perpetual divorce may be granted by the court
after due hearing and after the parties shall have
performed the prescribed acts of imprecation
(li'an).
(b) Divorce under the Muslim Code, MC 45-55

CHAPTER III
Divorce (Talaq)
Section 1. Nature and Form.
Art. 45. Definition and forms. Divorce is the
formal dissolution of the marriage bond in
accordance with this Code to be granted only
after the exhaustion of all possible means of
reconciliation between the spouses. It may be
effected by:
(a) Repudiation of the wife by the husband
(talaq);
(b) Vow of continence by the husband (ila);
(c) Injurious assanilation of the wife by the
husband (zihar);
Art. 50. Divorce by khul'. The wife may, after

having offered to return or renounce her dower or
to pay any other lawful consideration for her
release (khul') from the marriage bond, petition
the court for divorce. The court shall, in
meritorious cases and after fixing the
consideration, issue the corresponding decree.
Art. 51. Divorce by tafwid. If the husband has
delegated (tafwid) to the wife the right to effect a
talaq at the time of the celebration of the
marriage or thereafter, she may repudiate the
marriage and the repudiation would have the
same effect as if it were pronounced by the
husband himself.
Art. 52. Divorce by faskh. The court may, upon

petition of the wife, decree a divorce by faskh on
any of the following grounds :
(a) Neglect or failure of the husband to provide
support for the family for at least six consecutive
months;
(b) Conviction of the husband by final judgment
sentencing him to imprisonment for at least one
year; . (c) Failure of the husband to perform for
six months without reasonable cause his marital
obligation in accordance with this code;
(d) Impotency of the husband;
(e) Insanity or affliction of the husband with an
incurable disease which would make the
continuance of the marriage relationship injurious
to the family;
(f)Unusual cruelty of the husband as defined
under the next succeeding article; or
(g) Any other cause recognized under Muslim law
for the dissolution of marriage by faskh either at
the instance of the wife or the proper wali. .
Art. 53. Faskh on the ground of unusual cruelty.
A decree offaskh on the ground of unusual
cruelty may be granted by the court upon petition
of the wife if the husband:
(a) Habitually assaults her or makes her life
miserable by cruel conduct even if this does not
result in physical injury;
(b) Associates with persons of ill-repute or leads
an infamous life or attempts to force the wife to
live an immoral life;
(c) Compels her to dispose of her exclusive
property or prevents her from exercising her legal
rights over it;
(d) Obstructs her in the observance of her
religious practices; or
(e) Does not treat her justly and equitably as
enjoined by Islamic law.
Art. 54. Effects of irrevocable talaq or faskh. A
talaq or faskh, as soon as it becomes irrevocable,
shall have the following effects:
(a) The marriage bond shall be severed and the
spouses may contract another marriage in
accordance with this Code;
(b) The spouses shall lose their mutual rights of
inheritance;
(c) The custody of children shall be determined in
accordance with Article 78 of this code;
(d)The wife shall be entitled to recover from the
husband her whole dower in case the talaq has
been affected after the consummation of the
marriage, or one-half thereof if effected before its
consummation; .
(e) The husband shall not be discharged from his
obligation to give support in accordance with
Article 67; and
(f) The conjugal partnership, if stipulated in the
marriage settlements, shall be dissolved and
liquidated.
Art. 55.Effects of other kinds of divorce. The
provisions of the article immediately preceding
shall apply to the dissolution, of marriage by ila,
zihar, li'an and khul', subject to the effects of

compliance with the requirements of the Islamic
law relative to such divorces.
Llave v Republic, G.R. No. 169766, March 30, 2011

B. Concept of legal separation, compare with NCC

97
1.
Grounds for legal separation Art. 55 FC, RA

9262
TITLE II
LEGAL SEPARATION
Art. 55. A petition for legal separation may be
filed on 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 years, even
if pardoned;
(5) Drug addiction or habitual alcoholism of
the respondent;
(6) Lesbianism or homosexuality of the
respondent;
(7) Contracting by the respondent of a
subsequent bigamous marriage, whether in
the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life
of the petitioner; or
(10) Abandonment of petitioner by
respondent without justifiable cause for more
than one year.
For purposes of this Article, the
term "child" shall include a child by nature or
by adoption.
RA 9262
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.
A.M. No. 02-11-11-SC. March 4, 2003

RULE ON LEGAL SEPARATION
Sec. 2. Petition. (a) Who may and when to file.
(1) A petition for legal separation may be filed
only by the husband or the wife, as the case may
be within five years from the time of the
occurrence of any of the following causes:
(a) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a
common child, or a child of the petitioner;
(b) Physical violence or moral pressure to compel
the petitioner to change religious or political
affiliation;
(c) 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;
(d) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(e) Drug addiction or habitual alcoholism of the
respondent;
(f) Lesbianism or homosexuality of the
respondent;
(g) Contracting by the respondent of a
subsequent bigamous marriage, whether in or
outside the Philippines;
(h) Sexual infidelity or perversion of the
respondent;
(i) Attempt on the life of petitioner by the
respondent; or
(j) Abandonment of petitioner by respondent
without justifiable cause for more than one year
(a) Sexual infidelity or perversion
FC 55(8); NCC 36; RPC 333 & 334; RPC 247
Art. 36. Pre-judicial questions which must be
decided before any criminal prosecution may be
instituted or may proceed, shall be governed by

rules of court which the Supreme Court shall
promulgate and which shall not be in conflict with
the provisions of this Code.
Title Eleven
CRIMES AGAINST CHASTITY
Chapter One
ADULTERY AND CONCUBINAGE
Art. 333. Who are guilty of adultery. Adultery is
committed by any married woman who shall have
sexual intercourse with a man not her husband
and by the man who has carnal knowledge of her
knowing her to be married, even if the marriage
be subsequently declared void.
Adultery shall be punished by prision correccional
in its medium and maximum periods.
If the person guilty of adultery committed this
offense while being abandoned without
justification by the offended spouse, the penalty
next lower in degree than that provided in the
next preceding paragraph shall be imposed.
Art. 334. Concubinage. Any husband who shall
keep a mistress in the conjugal dwelling, or shall
have sexual intercourse, under scandalous
circumstances, with a woman who is not his wife,
or shall cohabit with her in any other place, shall
be punished by prision correccional in its
minimum and medium periods.
The concubine shall suffer the penalty of
destierro.
Art. 247. Death or physical injuries inflicted under
exceptional circumstances. Any legally married
person who having surprised his spouse in the act
of committing sexual intercourse with another
person, shall kill any of them or both of them in
the act or immediately thereafter, or shall inflict
upon them any serious physical injury, shall suffer
the penalty of destierro.
If he shall inflict upon them physical injuries of
any other kind, he shall be exempt from
punishment.
These rules shall be applicable, under the same
circumstances, to parents with respect to their
daughters under eighteen years of age, and their
seducer, while the daughters are living with their
parents.
Any person who shall promote or facilitate the
prostitution of his wife or daughter, or shall
otherwise have consented to the infidelity of the
other spouse shall not be entitled to the benefits
of this article.
Kalaw v Fernandez, GR 166357, September 19,

2011
Republic v Quintos, GR 159594, November 12,

2012
(b) Drug addiction, habitual alcoholism,

lesbianism or Homosexuality
FCC 55 (5) and (6) compare with FC 46(4)
(5) Drug addiction or habitual alcoholism of the
respondent;
respondent;
Art. 46. Any of the following circumstances shall
constitute fraud referred to in Number 3 of the
preceding Article:
(4) Concealment of drug addiction, habitual
alcoholism or homosexuality or lesbianism
existing at the time of the marriage.
Almelor v RTC, GR No. 179620, Aug. 26, 2008

Campos v Campos, A.M. No. MTJ-10-1761, Feb.
08, 2012
FACTS:This is a complaint for serious

misconduct, immorality and dishonesty filed
by complainants against respondent, former
Presiding
Judge
of
the
MTC
of
Bayugan,Agusan del Sur.
Complainant Aida and respondent were
married
in
1981
and
had
two
children,complainants
Alistair
and
Charmaine. In 2008, respondent filed a
petition
for
Declarationof
Nullity
of
Marriage, alleging that he and Aida were
both psychologically incapacitatedto comply
with the essential marital obligations.
For his part, respondent is a homosexua
lwho could not be intimate with his wife
unless he imagined he was with another
man,while his wife had affairs with other
men as a result of his homosexuality.
To her defense, Aida denied the allegations
and filed for legal separation. According to
her,respondent
wanted
their
marriage
annulled so that he could marry another
woman withwhom he was having a
relationship. In the meantime, a separate
case was pending against the respondent,
to which a certain parcel of registered land
might be taken from the their property in
the event of loss.
Facts show that the title to such land was
kept by respondent in his drawer. When
respondent could not find the title in his
usual place for safekeeping, he sought the
advice of the Register of Deeds who told
him to execute the affidavit of loss, to which
he did.Respondent then registered the title
but in the name of Alistair, a minor at that
time.
ISSUE:Is respondent guilty of immorality,
dishonesty, and serious misconduct?
HELD: NO, respondent is not guilty of
immorality,
dishonesty
and
serious
misconduct but only simple misconduct.
First, the complainants failed to present any
proof
of
respondents
alleged
relationshipwith another woman, so as to
justify a charge for immorality. There was no
evidence
presented
that
respondent
engaged in scandalous conduct that would
warrant theimposition of disciplinary action
against him. However, the Court reminded
respondent of the judge's duty to conduct
himself in a way that is consistent with the
dignity of the judicial office. As such, he
must comport himself at all times in such a
manner that his conduct, official or
otherwise, can bear the most searching
scrutiny of the public thatlooks up to him as
the epitome of integrity and justice.
Second, 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.
We also agree with the investigating judge and
the OCAs findings that respondent was not guilty
of dishonesty as regards the declaration of loss of
title covered by OCT No. P-28258. As found by the
investigating judge, the title was kept by
respondent in his drawer. When respondent could
not find the title in his usual place for
safekeeping, he sought the advice of the Register
of Deeds who told him to execute the affidavit of
loss. In addition, while the property was registered
in Alistairs name, he did not controvert his
fathers claim that he was the real owner of the
land and that his father kept the title in his
possession. Thus, respondent did not appear to
have acted in bad faith or committed dishonesty
in executing the affidavit of loss of the title to the
property.
We agree with the investigating judge and the
OCA in finding respondent guilty of simple
misconduct in causing the registration of the title
over OCT No. P-28258 in his sons name with the
intention of defrauding a possible judgmentobligee
(2) An attempt by one spouse against the life of

the other.
Rep. Act 9262- Violence against women and her
children
(d)
Abandonment
FC Art. 55 (10)
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one year.
FC 101 par. 3, compare with separation in fact
Art. 101. (3)
A spouse is deemed to have abandoned the other
when her or she has left the conjugal dwelling
without intention of returning. The spouse who
has left the conjugal dwelling for a period of three
months or has failed within the same period to
give any information as to his or her whereabouts
shall be prima facie presumed to have no
intention of returning to the conjugal dwelling.
The Court defined simple misconduct as follows:

Simple misconduct has been defined as an
unacceptable behavior that transgresses the
established rules of conduct for public officers. It
is an unlawful behavior. Misconduct in office is
any unlawful behavior by a public officer in
relation to the duties of his office, willful in
character. It generally means wrongful, improper,
unlawful conduct motivated by a premeditated,
obstinate, or intentional purpose although it may
not necessarily imply corruption or criminal
intent.
Republic v Quintos, GR 159594, November 12,

2012
(e) Other
grounds -FC 55 (1)

(c) Attempt on the life of the other spouse
(1) Repeated physical violence or grossly abusive

common child, or a child of the petitioner
FC 55(9), compare with NCC 97(2)

Goitia vs Campos-Rueda, 35 Phils 252

(9) Attempt by the respondent against the life of

the petitioner;
Kalaw v Fernandez, GR 166357, September 19,
2011
filed:
for one year prior to the filing of the petition,

unless the cause for the legal separation has
taken place within the territory of this Republic.
(Sec. 2a, Act No. 2710)
2.
Who can ask for legal separation
FC 55, compare with NCC 99

(1) Repeated physical violence or grossly abusive
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;
respondent;
(7) Contracting by the respondent of a
subsequent bigamous marriage, whether in the
Philippines or abroad;
(9) Attempt by the respondent against the life of
the petitioner; or
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall
include a child by nature or by adoption
Art. 99. No person shall be entitled to a legal
separation who has not resided in the Philippines
for one year prior to the filing of the petition,
unless the cause for the legal separation has
taken place within the territory of this Republic.
(Sec. 2a, Act No. 2710)
3. When may petition be filed
FC 57, compare with NCC 102, NCC 99
Art. 57. An action for legal separation shall be
filed within five years from the time of the
occurrence of the cause.
Art. 102. 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. (4a, Act 2710)
Art. 99. No person shall be entitled to a legal
separation who has not resided in the Philippines
Lapuz v. Eufemio 43 SCRA 177

FACTS: Carmen Lapuz-Sy filed a petition for legal
separation against Eufemio Eufemio on August
1953. They were married civilly on September
21, 1934 and canonically after nine days. They
had lived together as husband and wife
continuously without any children until 1943 when
her husband abandoned her. They acquired
properties during their marriage. Petitioner then
discovered that her husband cohabited with a
Chinese woman named Go Hiok on or about
1949. She prayed for the issuance of a decree of
legal separation, which among others, would
order that the defendant Eufemio should be
deprived of his share of the conjugal partnership
profits.
Eufemio counterclaimed for the declaration of
nullity of his marriage with Lapuz-Sy on the
ground of his prior and subsisting marriage with
Go Hiok. Trial proceeded and the parties adduced
their respective evidence. However, before the
trial could be completed, respondent already
scheduled to present surrebuttal evidence,
petitioner died in a vehicular accident on May
1969. Her counsel duly notified the court of her
death. Eufemio moved to dismiss the petition for
legal separation on June 1969 on the grounds that
the said petition was filed beyond the one-year
period provided in Article 102 of the Civil Code
and that the death of Carmen abated the action
for legal separation. Petitioners counsel moved
to substitute the deceased Carmen by her father,
Macario Lapuz.
ISSUE: Whether the death of the plaintiff, before
final decree in an action for legal separation,
abates the action and will it also apply if the
action involved property rights.
HELD: An action for legal separation is abated by
the death of the plaintiff, even if property rights
are involved.
These rights are mere effects of decree of
separation, their source being the decree itself;
without the decree such rights do not come into
existence, so that before the finality of a decree,
these claims are merely rights in expectation. If
death supervenes during the pendency of the
action, no decree can be forthcoming, death
producing a more radical and definitive
separation; and the expected consequential rights
and claims would necessarily remain unborn.
1.
The petition of Eufemio for declaration of nullity
is moot and academic and there could be no
further interest in continuing the same after her
demise,
that
automatically
dissolved
the
questioned union. Any property rights acquired
by either party as a result of Article 144 of the
Civil Code of the Philippines 6 could be resolved
and determined in a proper action for partition by
either the appellee or by the heirs of the
appellant.
Under Art. 102 of the new Civil Code, 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 the
cause occurred. The plaintiff became
aware of the illegal cohabitation of her
husband with Asuncion Rebulado in
January, 1955. The complaint was filed on
April 24, 1956. The present action was,
therefore, filed out of time and for that
reason action is barred.
Matubis v. Praxedes, 109 Phil 789

Procedural History:
Plaintiff Socorro Matubis, filed with the Court of
First Instance of Camarines Sur, on April 24, 1956,
a complaint for legal Separation and changed of
surname against her husband defendant Zoilo
Praxedes. The Court dismissed the suit based on
Art. 102 of the new Civil Code and Article 100 of
the new Civil Code. An appeal is hereby made to
review the decision.
No. An action for legal separation had

already prescribed as provided for under
Article 201 of the new Civil Code.
1.
Yes. The written agreement between

them is an unbridled license she gave her
husband to commit concubinage. Having
consented to the concubinage, the
plaintiff cannot claim legal separation.
Article 100 of the new Civil Code provides
that the legal separation may be claimed
only by the innocent spouse, provided
there has been no condonation of or
consent to the adultery or concubinage.
As shown in Exhibit B, the plaintiff has
consented
to
the
commission
of
concubinage by her husband. The
condonation and consent here are not
only implied but expressed. Having
condoned and/or consented in writing,
the plaintiff is now undeserving of the
courts
sympathy
(People
vs.
Scheneckenburger, 73 Phil., 413)
Statement of Facts:
Plaintiff and defendant were legally married on
January 10, 1943 at Iriga, Camarines Sur. The
couple, on May 30, 1944, agreed to live
separately from each other, which status
remained unchanged until the present. On April 3,
1948, plaintiff and defendant entered into an
agreement (Exhibit B) stating that both of them
will relinquish their right over the other as legal
husband and wife, that both cannot prosecute the
other for adultery or concubinage or any other
crime or suit arising from the separation, that
both are no longer entitled for any support from
the other, and that neither of them can claim
anything from the other from the time they
verbally separated.
People v. Zapata 88 Phil 688

In January, 1955, defendant began cohabiting
with one Asuncion Rebulado and on September 1,
1955, said Asuncion gave birth to a child who was
recorded as the child of said defendant (Exh. C.).It
was shown also that defendant and Asuncion
deported themselves as husband and wife and
were generally reputed as such in the community.
Facts:
1.
A complaint was filed by Andres bondoc

against Guadalupe Zapata his wife and
dalmacio bondoc his paramour for
cohabiting and having repeated sexual
intercourse from year 1946 to march 14,
19472)
2.
Defendant-wife
plead
guilty
and
sentenced to suffer 4 mos of arresto
mayor which penalty she served3)
3.
17 sept 1948, the offended husband filed

another complaint for adulterous acts
committed from march 151947 to sept 17
19484)
Issues:
1.
2.
Held:
Whether or not the action had not yet

prescribed.
Whether or not there was consent on the
part of the plaintiff to the concubinage.
4.
Defendants filed motion to quashtwice

put in
jeopardy
of punishment for
the same offense
CFI quased the 2nd complaint
4. Court procedure in legal separation - FC 5860;
-Adulterous acts charged in the first and second

complaints must be deemed one continuous
offenseno person shall be put twice in jeopardy
for the same offense
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)
SC DECISION: order (quashed second complaint)

is reversed and set aside and the trial court
directed to proceedwith the trial of the defendants
in accordance with law
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)
RATIO:
1)Adultery is a crime of result and not of
tendency; it is an instantaneous crime which is
consummated and exhausted or completed at the
moment of the carnal unioneach sexual
intercourse constitutes a crime of adultery
2)There is no constitutional or legal provision
which bars the filing of as many complaints for
adultery asthere were adulterous acts committed,
each one constituting a crime
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)
Sec 19, RA 9262;
3)FOR CONTINUOUS CRIME:

a) plurality of acts performed separately during
a period of time;
b) unity of penal provisions infringed upon or
violated;
c) unity of criminal intent or purpose (two or more
of the same penal provision are united in one and
the same intent leading to the perpetration of the
same criminal purpose or aim)
4)In the instant case, the last unity does not exist
the culprits perpetrate the crime in every sexual
intercourse and they need not do another or other
adulterous acts to consummate it
5)This does not violate the double jeopardy clause
of the constiif the second complaint places he
defendants twice in jeopardy of punishment for
the same offense, the adultery committed by the
male defendant charged in the second complaint,
should he be absolved from or acquitted of the
first charge upon the evidence that he did not
know that his co-defendant was a married
woman, would remain or go unpunished.
6)Even if husband should pardon his wife, such
pardon would not exempt the wife and her
paramour from criminal liability for adulterous
acts committed after the pardon was granted,
because the pardon refers to previous and not
to subsequent adulterous acts
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.
A.M. No. 02-11-11-SC. March 4, 2003

RULE ON DECLARATION OF ABSOLUTE NULLITY OF
VOID MARIAGES AND ANNULMENT OF VOIDABLE
MARRIAGES
Araneta vs Concepcion, 99 Phil 709

FACTS:
1) Petitioner filed action against his wife for legal
sep ground: adultery
2) Defendant filed an omnibus petition to secure
custody of their three minor children, a monthly
support of P5000 for herself and said children and
the return of her passport to enjoin plaintiff from
ordering his hirelings from harassing and
molesting her as well as pay for attorneys fees
3)Plaintiff denied misconduct imputed to him and

alleging that defendant has abandoned the
childrenconjugal properties were worth only
P80,000-contends defendant is not entitled to the
custody of the children as she has abandoned
them and had committed adultery, that by her
conduct she had become unfit to educate her
children, being unstable in her emotions and
unable to give the children to love, respect and
care of a true mother and w/o means to educate
them
CFI: granted custody of the children to defendant
and a monthly allowance of P2300 for support for
herand the children, P300 for a house and P2000
as attorneys fees; reconsideration denied
DECISION OF SC; Writ prayed for is ISSUED and
the respondent judge or whosoever takes his
place isordered to proceed on the question of
custody and support pendent elite in accordance
with this opinion. The ocurts order fixing the
alimony and requiring payment is
REVERSED
RATIO:
1)main reason given by judge for refusing
plaintiffs request that evidence be allowed to be
introduced: art 103 of CC6 months allowance
cooling off period
2)provision
of
code
is
mandatorycourt
understands that the introduction of any
evidence, be it on the merits of the case or on any
incident, is prohibitedstatus quo to be preserved
for this time
3)it may be noted that since 6 mos have elapsed
since the filing of the petition may not be allowed
reasons for granting the preliminary injunction
should be given tat the scope of the art cited may
be explained
4) cooling off
reconciliation
period
to
make
possible
5)but 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 children and
alimony and support pendent elite according to
the circumstances
6) the law expressly enjoins that these should be
determined by the court according to the
circumstances, if these are ignored or the courts
close their eyes to actual facts, rank in justice
maybe cause
7) Allegations of adultery letter of authenticity as
evidenceabandonment of conjugal abode
evidence of all these disputed allegations should
be allowed that the discretion of the court as to
the custody and alimony pendent elite may be

lawfully exercised
8) the rule is that all the provisions of the law
even if apparently contradictory, should be
allowed to stand and given effect by reconciling
them if necessary
9) thus 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
10) evidence not affecting the cause of the
separation, like the actual custody of 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.
Pacete v. Cariaga, 231 SCRA 321

FACTS:
Concepcion Alanis filed a complaint on October
1979, for the Declaration of Nullity of Marriage
between her erstwhile husband Enrico Pacete and
one Clarita de la Concepcion, as well as for legal
separation between her and Pacete, accounting
and separation of property. She averred in her
complaint that she was married to Pacete on April
1938 and they had a child named Consuelo; that
Pacete subsequently contracted a second
marriage with Clarita de la Concepcion and that
she learned of such marriage only on August
1979. Reconciliation between her and Pacete was
impossible since he evidently preferred to
continue living with Clarita.
The defendants were each served with summons.
They filed an extension within which to file an
answer, which the court partly granted. Due to
unwanted
misunderstanding, particularly in
communication, the defendants failed to file an
answer on the date set by the court. Thereafter,
the plaintiff filed a motion to declare the
defendants in default, which the court forthwith
granted. The court received plaintiffs evidence
during the hearings held on February 15, 20, 21,
and 22, 1980. After trial, the court rendered a
decision in favor of the plaintiff on March 17,1980.
ISSUE: Whether or not the RTC gravely abused its
discretion in denying petitioners motion for
extension of time to file their answer, in declaring
petitioners in default and in rendering its decision
on March 17, 1980 which decreed the legal
separation of Pacete and Alanis and held to be
null and void the marriage of Pacete to Clarita.
HELD:
The Civil Code provides that no decree of legal

separation shall be promulgated upon a
stipulation of facts or by confession of judgment.
In case of non-appearance of the defendant, the
court shall order the prosecuting attorney to
inquire whether or not collusion between parties
exists. If there is no collusion, the prosecuting
attorney shall intervene for the State in order to
take care that the evidence for the plaintiff is not
fabricated.
The above stated provision calling for the
intervention of the state attorneys in case of
uncontested proceedings for legal separation (and
of annulment of marriages, under Article 88) is to
emphasize that marriage is more than a mere
contract.
Article 103 of the Civil Code, now Article 58 of the
Family Code, further mandates that an action for
legal separation must in no case be tried before
six months shall have elapsed since the filing of
the petition, obviously in order to provide the
parties a cooling-off period. In this interim, the
court should take steps toward getting the parties
to reconcile.
The significance of the above substantive
provisions of the law is further or underscored by
the inclusion of a provision in Rule 18 of the Rules
of Court which provides that no defaults in actions
for annulments of marriage or for legal
separation. Therefore, if the defendant in an
action for annulment of marriage or for legal
separation fails to answer, the court shall order
the prosecuting attorney to investigate whether or
not a collusion between the parties exists, and if
there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is
not fabricated.
5. Effect of pendency of the petition, FC 61-62
Art. 61. After the filing of the petition for legal
separation, the spouses shall be entitled to live
separately from each other.
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. (104a)
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)
(a) cooling-off period, FC 58
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.
(b) right of consortium, FC 61 par. 1
Art. 61. 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 61 par. 2
(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.
De la Via v. Villareal 41 Phil 13
Facts:
On September 17, 1917, Narcisa Geopano filed a
complaint in the Court of First Instance of the
Province of Iloilo against Diego de la Via
for divorce, partition of conjugal property, and
alimony pendente lite in the sum of P400/month.
She alleged among others that since the year
1913 and up to the date of the complaint, he
defendant had been committing acts of adultery
with one Ana Calog, sustaining illicit relations with
her and having her as his concubine, with public
scandal and in disgrace of the plaintiff.
That because of said illicit relations, the defendant
ejected the plaintiff from the conjugal home,
forwhich reason she was obliged to live in the city
of Iloilo, where she had since established her
habitual residence.
That the plaintiff, scorned by her husband, the
defendant, had no means of support and was
living only at the expense of one of her daughters.
Subsequent to the filing of the said complaint,
Narcisa Geopano, the plaintiff therein, presented a
motion alleging, among other things, that since
the filing of her complaint she had personal
knowledge that the defendant was trying
to alienate or encumber the property which
belonged to the conjugal partnership between the
plaintiff and the defendant, to the prejudice of
the plaintiff, and prayed that a preliminary
injunction be issued against the defendant
restraining and prohibiting him in the premises.
CFI granted preliminary injunction but respondent
appealed claiming that CFI Iloilo has no
jurisdiction since his wife should follow his
domicile and that the judge has exceeded his

power in granting the preliminary injunction.
Issue:
1. WON a married woman ever acquire a
residence or domicile separate from that of her
husband during the existence of marriage?
2. WON the wife may obtain a preliminary
injunction against the husband restraining and
prohibiting him from alienating or encumbering
any part of the conjugal property during the
pendency of the action
Ruling:
YES, when the husband has given enough reason
for her to do so as example, cause of divorce.
- The law will recognize a wife as having a
separate existence, and separate interests, and
separate rights, in those cases where the express
object of all proceedings is to show that the
relation itself ought to be dissolved
- The law making the domicile of the husband that
of the wife is applicable only to their relations with
third parties, and has no application in cases
of actual separation and controversy between
themselves as to the temporary or permanent
severance of the marriage ties by judicial
proceedings.
She also informed the court that despite her

husbands retirement, he had not returned to his
legitimate family and was instead maintaining a
separate residence with another woman and their
3 kids.
Wife asked the court to grant legal separation and
order the liquidation of their conjugal properties,
with forfeiture of her husbands share because of
his adultery.
RTC RULING
RTC found that petitioner had indeed contracted
a bigamous marriage. Court thus decreed the
legal separation and forfeiture of petitioners
share in the conjugal properties, declaring as well
that he was not entitled to support from his wife.
CA RULING
(Wife filed motion for issuance of writ of
preliminary injunction to enjoin petitioner from
interfering with administration of their properties.
She alleged that he had harassed the tenant in
Forbes Park that his lease would not be renewed)
= granted by CA
(Petitioner now assails this decision, arguing that
since the law provides for joint administration
of conjugal properties, no injunctive relief can be
issued against one or the other because no right
will be violated. He also cited Art 124 and Art 61
of FC ).
ISSUE
W/N a preliminary injunction can be issued by the
Court (despite joint administration of conjugal
properties)
Sabalones v. CA 230 SCRA 79

FACTS
SC RULING
As member of diplomatic service assigned to

different countries, petitioner Samson Sabalones
left to his wife (respondent), the administration of
some of their conjugal properties for 15 years.
He retired as ambassador in 1985 and came back
to the Philippines, but not to his wife and children.
YES
4 years later, he filed an action for judicial

authorization to sell a building and lot in
Greenhills, San Juan. He claimed that he was68
years old, sick and living alone without any
income, and that his share of the proceeds of the
sale to defray the prohibitive cost of his
hospitalization and medical treatment.
In her answer, wife opposed the authorization and
filed a counterclaim for legal separation. She
alleged that the house in Greenhills was occupied
by her and their 6 kids, and that they were
depending for their support on the rentals from
another conjugal property (building and lot in
Forbes Park).
We agree with CA that pending the appointment

of an administrator over the whole mass
of conjugal assets, the respondent court was
justified in allowing the wife to continue with
her administration. It was also correct, taking
into account the evidence adduced at the hearing,
in enjoining the petitioner from interfering with his
wifes administration pending resolution of the
appeal.
The law does indeed grant joint administration
over the conjugal properties, as clearly provided
in Art 124.
However, Art 61 states that after a petition for
legal separation has been filed, the trial
court shall,
in
the
absence
of
a written
agreement, appoint either one of the spouse or a
3rd person to act as administrator.
While no formal designation of administrator has
been made, such designation was implicit in the
decision of the trial court denying the petitioner
any share in the conjugal properties (and thus

also disqualifying him as administrator thereof).
That designation was in effect approved by the
Court of Appeals when it issued in favor of the
wife with the preliminary injunction.
The primary purpose of injunction is to preserve
status quo. The Court notes that the wife has
been administering the subject properties for 19
years now, without complaint on the part of
petitioner. He has not alleged, much less shown,
that her administration has caused prejudice to
the conjugal partnership.
In her motion for issuance of preliminary
injunction, the
respondent wife alleged that the petitioners
harassment of their tenant in Forbes Park would
jeopardize the lease and deprive her and her
children of the income therefrom.
She also complained that petitioner executed a
quitclaim over their conjugal property in USA in
favor of Thelma Cumareng (the other woman) to
improve her lifestyle, to the prejudice of his
legitimate family. These allegations show that
injunction is necessary to protect the interests
of wife and kids.
The twin requirements of a valid injunction are:
existence of a right and its actual or threatened
violation. Regardless of the outcome of the
appeal, it cannot be denied that as the
petitioners legitimate wife, she has a right to
a share (if not the whole) of the conjugal estate.
There is also enough evidence to raise
apprehension that entrusting said estate to
petitioner may result in its disposition to the
detriment of the wife and kids. Let it be stressed
that the injunction has not permanently installed
the respondent wife as the administrator of the
whole mass of conjugal assets. It has merely
allowed her to continue administering the
properties in the meantime without interference
from the petitioner, pending the express
designation of the administrator in accordance
with Art 61.
Art 124:
The administration and enjoyment of the conjugal
partnership property shall belong to both spouses
jointly. In case of disagreement, the husband's
decision shall prevail, subject to recourse to the
court by the wife for proper remedy, which must
be availed of within five years from the date of
the contract implementing such decision
(d) Support and 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.
Art. 49. 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 to in Title IX. It shall
also provide for appropriate visitation rights of the
other parent.
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.
Yangco v. Rhode, 1 Phil 404
FACTS:
Petitioner Luis Yangco filed writ of prohibition
in the Supreme Court, alleging that complaint had
been filed by Victorina Obin against the petitioner
praying that she be declared the lawful wife of the
said Yangco, and that she be granted a divorce,
an allowance for alimony, and attorney's fees
during the pendency of the suit.
Complaint was filed before Respondent Judge
Rohde, of the CFI of Manila, who then overruled
the demurrer filed by the petitioner, stating he is
of the opinion that petitioners marriage with
Victorina is valid. Petitioner denies this.
Respondent then ordered petitioner to pay the
plaintiff, in advance, a monthly allowance of 250
Mexican pesos from and after the 11th of March
last past, and to pay on the 1st day of August
following all accrued allowances, in addition to the
allowance for the said month, amounting to the
sum of 1,500 pesos.
Petitioner claims that he would be unable to earn
back the sum hes being compelled to imburse,
and that hes been deprived of right of appeal or
any plain, speedy, or adequate remedy. He prays
to reverse respondents
judgement, and to prohibit respondent from
compelling him to pay Victorina the said sum.
FC 62 cf. FC 49, FC 198

Respondent files a demurer on the following
ground: (1) That this court is without jurisdiction
over the subject-matter of the action; (2) that the

petition does not state facts sufficient to
constitute a causeof action.
Thus, as the evidence is lacking, a suit of alimony

could not have prospered based on Respondent
Judges opinion alone.[and Victorina has noright to
claim allowance for alimony]
ISSUES:
1.
WoN Respondent Judge was right to

act on the assumption that their marriage
was valid
2.
WoN Respondent Judge was right to

compel Petitioner to pay the sum
a.
WoN Victorina Obin has the right

to
obtain
an allowance
for
alimony
3.
WoN Respondent Judges decision really

cant be appealed from
4.
WoN Respondent Judge acted outside of

his jurisdiction
a.
WoN writ of prohibition should be

granted
3.No, BUT while it is true that an interlocutory

order
such
as
that
rendered
by
the
respondent judge in the present case is not
appealable during the course of the trial (but only
after a final judgment has been rendered) it is
also true that it cannot be the intention of the law,
when prohibiting an appeal against interlocutory
orders, to give executory force to all kinds of
other interlocutory orders which the judge may
see fit to make in the course of a trial, and still
less when the effect would be to cause irreparable
damage, such as that alleged by the petitioner in
the present case.
4.Yes.
The court below had jurisdiction to try the divorce
suit,
but he was without jurisdiction to grant alimony
when the right to claim alimony. The Code only
grants the rights to alimony to a wife.
This status not appearing by a final judgment, the
court is without jurisdiction to make any order in
the matter.
HELD:
1.No. He said himself that the status of validity of
the marriage was not clear or free from doubt.
2.No. Art 143 of the Civil Code cited by the
respondent judge himself states the right to
support is granted: (1) to spouses inter se; (2) to
legitimate descendants and ascendant sinter se;
(3) to parents and certain legitimated and
acknowledged
natural
children;
(4)
to
other illegitimate children, and (5) to brothers and
sisters.
Present in all these cases is a civil status or a
juridical relation which is the basis of the action
for support. In the case at bar the civil status that
should be the basis of the action for support is
marriage, which must be duly proven in
the manner provided for by Art 53:
Marriages celebrated before the operation of
the Code, must be proven by the canonical
certificate
Further,under Art 1591 of the old Code any person
believing himself entitled to that provisional
alimony or support was required to file with the
complaint documents proving conclusively the
title by virtue of which the same was sued for
The judge, under article 1592, could not admit the
complaint unless the documents referred toin the
preceding article were submitted
[Mandamus and not prohibition is the proper

remedy for this
The motion and demurrer are overruled and the
defendant is authorized to answer the complaint
within twenty days from this date.
Lerma v. CA 61 SCRA 440
FACTS:
Teodoro E. Lerma and Concepcion Diaz were
married on May 19, 1951. On August 22,1969 the
petitioner filed a complaint for adultery against
the respondent and a certain Teodoro Ramirez and
on September 26, 1972 the court of First Instance
of Rizal decided the adultery case of the
respondent and found her and her co-accused,
Teodoro Ramirez, guilty of the charge, sentencing
them to a term of imprisonment.
During the pendency of the adultery case against
the respondent, wife On November 18, 1969 the
respondent filed with the lower court, a complaint
against the petitioner for legal separation and/or
separation of properties, custody of their children
and support, with an urgent petition for support
pendente lite for her and their youngest son,
Gregory, who was then and until now is in her
custody.
The respondent's complaint for legal separation is
based on two grounds: concubinage and attempt
against her life. The application for support
pendente lite was granted in an order dated
December 24,1969, which was amended in an

order dated February 15, 1970.
The petitioner filed his opposition to the
respondent's application for support pendente
lite, setting up as defense the adultery charge he
had filed against the respondent
On March 12, 1970 the petitioner filed with
respondent Court of Appeals a petition for
certiorari and prohibition with preliminary
injunction to annul the aforementioned orders on
the ground that they were issued with grave
abuse of discretion.
The next day the respondent court gave due
course to the petition and issued a writ of
preliminary injunction to stop Judge Luciano from
enforcing said orders. The respondent court, in its
decision of October 8, 1970, set aside the assailed
orders and granted the petitioner an opportunity
to present evidence before the lower court in
support of his defense against the application for
support
pendente lite
The respondent moved to reconsider the decision
on the ground that the petitioner had not asked
that he be allowed to present evidence in the
lower court. The respondent court, in its resolution
of January 20, 1971, set aside the decision of
October 8 and rendered another, dismissing the
petition. This is now the subject of the instant
proceeding for review.
ISSUE:
W/N the lower court acted with grave abused of
discretion in granting the respondents application
for support pendente lite without giving the
petitioner an opportunity to present evidence in
support of his defense against the said
application.
HELD:
Court of Appeals January 20, 1971 resolution and
the orders of respondent Juvenile and Domestic
Relations Court herein complained of, dated
December 24, 1969 and February 15,1970, all are
set aside and their enforcement enjoined, without
prejudice to such judgment as may be rendered in
the pending action for legal separation between
the parties.
The right to separate support or maintenance,
even from the conjugal partnership property,
presupposes the existence of a justifiable cause
for the spouse claiming such right to live
separately. This is implicit in Article 104 of the
Civil Code, which states that after the filing of the
petition for legal separation the spouses shall be
entitled to live separately from each other.
A petition in bad faith, such as that filed by one
who is himself or 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. In fact under
Article303 of the same Code the obligation to give
support shall cease "when the recipient, be he a
forced heir or not, has committed some act which
gives rise to disinheritance;" and under Article
921 one of the causes for disinheriting a spouse is
"when the spouse has given cause for legal
separation." The loss of the substantive right to
support in such a situation is incompatible with
any claim for support pendente lite.
6. Defenses in actions for legal separation FC

Art. 56
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.
(a) Consent - FC 56(2); NCC 100
(2) Where the aggrieved party has consented to
the commission of the offense or act
complained of;
Art. 100. The legal separation may be claimed
only by the innocent spouse, provided there has
been no condonation of or consent to the adultery
or concubinage. Where both spouses are
offenders, a legal separation cannot be claimed
by either of them. Collusion between the parties
to obtain legal separation shall cause the
dismissal of the petition.
People v. Sansano 50 Phil 73

Facts of the Case: A and B, husband and wife,
respectively, were legally married. Later, B
abandoned A. B Lived with C. A did nothing to
interfere with the relations of his wife and her
paramour. He event went to Hawaii, completely

abandoning his wife B for more than seven years.
Later, A returned and charged B and C with
adultery.
Issue: Is B guilty of adultery?
Decision of the Supreme Court: B should be
acquitted because A's conduct warranted the
inference that in truth, as well as in fact, he had
consented to the philandering of his wife.
godmother. They lived again as husband and wife

and stayed in the house of Pedro Bugayong,
cousin of the plaintiff-husband. On the second
day, he tried to verify from his wife the truth of
the information he received but instead of
answering, Leonila packed up and left him which
Benjamin concluded as a confirmation of the acts
of infidelity. After he tried to locate her and upon
failing he went to Ilocos Norte. Benjamin filed in
CIF of Pangasinan a complaint for legal separation
against Leonila, who timely filed an answer
vehemently denying the averments of the
complaint.
Issue: Whether or not the acts charged in line
with the truth of allegations of the commission of
acts of infidelity amounting to adultery have been
condoned by the plaintiff-husband.
People v. Schneckenberger 73 Phil 413

People v. Schneckenburger: The Supreme Court
held that the accused, who secured a foreign
divorce and later remarried in the Philippines
(believing that the foreign divorce was valid), is
liable for bigamy.
Ruling: Granting that infidelities amounting to

adultery were commited by the wife, the act of
the husband in persuading her to come along with
him and the fact that she went with him and
together they slept as husband and wife deprives
him as the alleged offended spouse of any action
for legal separation against the offending wife
because his said conduct comes within the
restriction of Article 100 of Civil Code.
(c) Recrimination
(b) Condonation - FC 56(1)
(1) Where the aggrieved party has condoned the
offense or act complained of;
FC 56(4)

(4) Where both parties have given ground for
legal separation;
Brown v. Yambao 102 Phil 168
Facts: Benjamin Bugayong, serviceman in the US

Navy was married to defendant Leonila Ginez in
Pangasinan, while on furlough leave. After
marriage, the couples live with the sisters of the
husband, before the latter left to report back to
duty, the couple came to an agreement that
Leonila would stay with Benjamins sisters.
As ordered, Assistant City Fiscal Rafael Jose

appeared at the trial, and cross-examined plaintiff
Brown. His questions (strenuously objected to by
Brown's counsel) elicited the fact that after
liberation, Brown had lived maritally with another
woman and had begotten children by her.
Thereafter, the court rendered judgment denying
the legal separation asked, on the ground that,
while the wife's adultery was established, Brown
had incurred in a misconduct of similar nature
that barred his right of action under Article 100 of
the new Civil Code, providing:
Leonila left the dwelling of her sisters-in-law which

she informed her husband by letter that she had
gone to reside with her mother in Pangasinan.
Early in July 1951, Benjamin receive letters from
his sister Valeriana Polangco that her wife
informing him of alleged acts of infidelity.
Benjamin went to Pangasinan and sought for his
wife whom he met in the house of Leonilas
ART. 100. The legal separation may be claimed

only by the innocent spouse, provided there has
been no condonation or of consent to the adultery
or concubinage. Where both spouses are
offenders, a legal separation cannot be claimed
by either of them. Collusion between the parties
to obtain legal separation shall cause the
dismissal of the petition.
Ginez v. Bugayong 100 Phil 616
Collusion in matrimonial cases being "the act of

married persons in procuring a divorce by mutual
consent, whether by preconcerted commission by
one of a matrimonial offense, or by failure, in
pursuance of agreement to defend divorce
proceedings" (Cyclopedia Law Dictionary; Nelson,
Divorce and Separation, Section 500), it was
legitimate for the Fiscal to bring to light any
circumstances that could give rise to the
inference that the wife's default was calculated, or
agreed upon, to enable appellant to obtain the
decree of legal separation that he sought without
regard to the legal merits of his case. One such
circumstance is obviously the fact of Brown's
cohabitation with a woman other than his wife,
since it bars him from claiming legal separation by
express provision of Article 100 of the new Civil
Code. Wherefore, such evidence of such
misconduct, were proper subject of inquiry as
they may justifiably be considered circumstantial
evidence of collusion between the spouses.
donation may have to assume certain charges or

burdens. Donation to an incapacitated donee does
not need the acceptance by the lawful
representative if said donation does not contain
any condition. In simple and pure donation, the
formal acceptance is not important for the donor
requires no right to be protected and the donee
neither undertakes to do anything nor assumes
any obligation. The Quitclaim now in question
does not impose any condition.
Ong vs Ong, G.R. No. 153206, October 23, 2006

(c) Collusion/Mutual Consent - FC 60
Facts:
On February 25, 1976, Imelda Ong, for and in
consideration of P1.00 and other valuable
considerations, executed a quitclaim over a parcel
of land in Makati in favor of Sandra Maruzzo, then
a minor. On November 19, 1980, Imelda revoked
the quitclaim and donated the property to her son
Rex. On June 20, 1983, Sandra, through her
guardial ad litem Alfredo Ong, filed an action to
recover the land and to declare the donation to
Rex null and void. In their responsive pleading,
petitioners claimed that the quitclaim is
equivalent to a donation which requires
acceptance by the donee, and since Sandra was a
minor, there was no valid acceptance. The trial
court ruled that the quitclaim is equivalent to a
sale. The Intermediate Appellate Court affirmed
the decision.
Issue:
Whether the quitclaim is equivalent to a deed of
sale or to a deed of donation
Held:
The execution of a deed purporting to convey
ownership of a realty is in itself prima facie
evidence of the existence of a valuable
consideration, the party alleging lack of
consideration has the burden of proving such
allegation. Even granting that the Quitclaim deed
in question is a donation, Article 741 of the Civil
Code provides that the requirement of the
acceptance of the donation in favor of minor by
parents of legal representatives applies only to
onerous and conditional donations where the
FC 56(3), (5), compare with NCC 101 and 221(3)

(3) Where there is connivance between the
parties in the commission of the offense or
act constituting the ground for legal
separation;
(5) Where there is collusion between the parties
to obtain decree of legal separation;
Art. 101. No decree of legal separation shall be
promulgated upon a stipulation of facts or by
confession of judgment.
In case of non-appearance of the defendant, the
court shall order the prosecuting attorney to
inquire whether or not a collusion between the
parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State
in order to take care that the evidence for the
plaintiff is not fabricated.
Art. 221. The following shall be void and of no
effect:
(3) Every collusion to obtain a decree of legal
separation, or of annulment of marriage;
Ocampo v. Florenciano 107 Phil 35

This is an action for legal separation which Jose de
Ocampo filed against his wife Serafina on the
ground of adultery. The case was dismissed by the
Court of first Instance which was affirmed by the
Court Appeals holding that there was confession
of judgment , plus condonation or consent to the
adultery and prescription.
Facts
Jose de Ocampo (Petitioner) and Serafina
Florenciano (Respondent)got married on April 5,
1938 and as a result of such union, they begot
several children. Sometime in March 1951,
Ocampo discovered that his wife was maintaining
illicit relations with Jose Arcalas. He sent his wife
to Manila to study beauty culture. Again, Ocampo
discovered that aside from Jose Arcalas, Serafina
was going out with several other men. Serafina
left Ocampo after she finished her study and since
then the two lived separately.
After Ocampo caught his wife in the act of having
illicit relations with Nelsom Orzame on June 18,
1955, he signified his intention of filing a petition
for legal separation. Serafina conformed to his
intention provided that she will not be charged
with adultery in a criminalaction. Ocampo filed a
petition for legal separation but the Court of First
Instance of Nueva Ecija dismissed it holding there
was
confession
of judgment, plus condonation or consent to the
adultery andprescription which was AFFIRMED by
the Court of Appeals.
CAs decision: With regard to the defendants
adultery with Jose Arcalas, the husbands right to
legal separation had prescribed because his
action was not filed within one year from March
1951 when plaintiff discovered her infidelity
(art.102,NCC).
As
to the adultery with Nelson
Orzame, after discovery of such, the husband
expressed his wish to file a petition for legal
separation which the defendant had readily
agreed to. Before the fiscal, the defendant even
reiterated her conformity to the legal separation
and admitted having sexual relations with Nelson
Orzame. The Appellate Court had interpreted such
facts as a confession of judgment under Art.101
and thus, legal separation could not be decreed.
Issue: Whether or not
separation be granted.
decree
for
legal
Ruling:
Yes. As the Court understand the article, it does
not exclude, as evidence, any admission or
confession made by the defendant outside of the
court. It merely prohibits a decree of separation
upon a confession of judgment. Confession of
judgment usually happens when the defendant

appears in court and confesses the right
of plaintiff to judgment or files a pleading express
ly agreeing to the plaintiffs demand
Supposing the statement of defendant constitutes
a confession of judgment, inasmuch as there is
evidence of the adultery independent of such
statement, the decree may and should be
granted, since it would not be based on her
confession, but upon evidence presented by the
plaintiff. What the law prohibits is a judgment
based exclusively or mainly on defendants
confession.
If a confession defeats the action ipso facto, any
defendant who opposes the separation will
immediately confess judgment for the purpose
of preventing it.
The fact that the defendant likes also to be
legally separated from her husband, is not an
obstacle to the successful prosecution of the
action. When the court is informed that defendant
equally desires the separation and admitted the
commission of the offense, it should be doubly
careful lest collusion exists. However, the Court of
Appeals did not find collusion. There would
be collusion if the parties had arranged by making
it appear that a matrimonial offense had been
committed although it was not, or if the parties
had connived to bring about a legal separation
even in the absence of grounds therefor.
According to the evidence presented in the
instant case, the offense of adultery had really
took place. The defendant could not have falsely
told the adulterous acts to the Fiscal, because her
story might send her to jail the moment her
husband request the Fiscal to prosecute. She
could not have practiced deception at such a
personal risk. In connection to this, 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
(Williamsvs. Williams, Rosenweig vs. Rosenweig).
And proof that defendant desires the divorce and
makes no defense, it not by itself collusion
(Pohlman vs. Pohlman).
The plaintiffs failure to actively search for the
defendant and take her home (after the latter left
him in 1952) does not constitute condonation or
consent to her adulterous relations with Orzame.
It was not his duty to search for her to bring her
home. Hers was the obligation to return.
Finding no obstacles to the aggrieved husbands
petition, the Supreme Court hereby REVERSED
the decision being appealed and decree a legal
separation between the spouses. Cost against
Serafina Florenciano.
Republic v CA, November 12, 2012


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R.A.

6955, An Act to Declare Unlawful

THE LAW ON SEPARATION OF THE SPOUSES

Concepts of separation & divorce

Benedicto v. De la Rama 3 Phil 34

The Court of First Instance of Iloilo, therefore,

Separation in fact, FC 238-248, 101(3)

by the proper court authorized to hear family

to have no intention of returning to the conjugal

Villanueva v Chiong, GR 159889, June 5, 2008

1988 is not void, but merely voidable Articles 166

Agreements to separate, FC 1, NCC 221

Article 1. Marriage is a special contract of

Art. 221. The following shall be void and of no

The Court of First Instance on December 24, 1923

Espinosa v Omana, A.C. No. 9081, October, 12,

1.Whether or not the foreign decree of divorce

(d) Acts of imprecation (li'an);

Somera v. Pilapil, 174 SCRA 663

Art. 46. Divorce by talaq. (1) A divorce by

(b) Divorce under the Muslim Code, MC 45-55

Art. 50. Divorce by khul'. The wife may, after

Art. 52. Divorce by faskh. The court may, upon

zihar, li'an and khul', subject to the effects of

Llave v Republic, G.R. No. 169766, March 30, 2011

B. Concept of legal separation, compare with NCC

Grounds for legal separation Art. 55 FC, RA

A.M. No. 02-11-11-SC. March 4, 2003

instituted or may proceed, shall be governed by

Kalaw v Fernandez, GR 166357, September 19,

Republic v Quintos, GR 159594, November 12,

(b) Drug addiction, habitual alcoholism,

Almelor v RTC, GR No. 179620, Aug. 26, 2008

FACTS:This is a complaint for serious

Second, With respect to respondents alleged

absolving respondent from the charge of

(2) An attempt by one spouse against the life of

The Court defined simple misconduct as follows:

Republic v Quintos, GR 159594, November 12,

grounds -FC 55 (1)

Art. 55. A petition for legal separation may be

(c) Attempt on the life of the other spouse

(1) Repeated physical violence or grossly abusive

FC 55(9), compare with NCC 97(2)

Goitia vs Campos-Rueda, 35 Phils 252

(9) Attempt by the respondent against the life of

for one year prior to the filing of the petition,

Who can ask for legal separation

FC 55, compare with NCC 99

Lapuz v. Eufemio 43 SCRA 177

Under Art. 102 of the new Civil Code, an

Matubis v. Praxedes, 109 Phil 789

No. An action for legal separation had

Yes. The written agreement between

People v. Zapata 88 Phil 688

A complaint was filed by Andres bondoc

17 sept 1948, the offended husband filed

Whether or not the action had not yet

Defendants filed motion to quashtwice

CFI quased the 2nd complaint

4. Court procedure in legal separation - FC 5860;

-Adulterous acts charged in the first and second

Art. 58. An action for legal separation shall in no

SC DECISION: order (quashed second complaint)