Republic of the Philippines Held: No, petitioner Froilan is not correct in his contention.
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79284 November 27, 1987
FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEARANDA, as Presiding Judge of the Regional
Trial Court of Misamis Oriental, Branch 18, Cagayan de Oro City,
and TERESITA S. GANDIONCO, respondents.
PADILLA, J.:
Facts:
On 29 May 1986, private respondent, the legal wife of the
petitioner, filed with the RTC of Misamis Oriental in Cagayan
de Oro City, presided over by respondent Judge, a complaint
against petitioner for legal separation, on the ground of
concubinage, with a petition for support and payment of
damages.
On 13 October 1986, private respondent also filed with the
Municipal Trial Court of General Santos City, a complaint
against petitioner for concubinage. On 14 November 1986,
application for the provisional remedy of support pendente
lite, pending a decision in the action for legal separation, was
filed by private respondent in the civil case for legal
separation. The respondent judge ordered the payment of
support pendente lite.
Petitioner contends that the civil action for legal
separation and the incidents consequent thereto, such
as, application for support pendente lite, should be
suspended in view of the criminal case for concubinage
filed against him the private respondent.
The petitioner elaborated that such civil action arises from, or
is inextricably tied to the criminal action for concubinage, so
that all proceedings related to legal separation will have to be
suspended to await conviction or acquittal for concubinage in
the criminal case.
Issue: Whether or not petitioner Froilan is correct in his contention.
Ratio: A civil action for legal separation, based on concubinage,
may proceed ahead of, or simultaneously with, a
criminal action for concubinage, because said civil
action is not one "to enforce the civil liability arising
from the offense" even if both the civil and criminal
actions arise from or are related to the same offense.
Such civil action is one intended to obtain the right to
live separately, with the legal consequences thereof,
such as, the dissolution of the conjugal partnership of
gains, custody of offsprings, support, and
disqualification from inheriting from the innocent
spouse, among others.
Re: the contention of petitioner that he must first be
convicted of concubinage before the action for legal
separation can succeed.
A decree of legal separation, on the ground of concubinage,
may be issued upon proof by preponderance of evidence in
the action for legal separation. No criminal proceeding or
conviction is necessary. To this end, the doctrine in Francisco
vs. Tayao has been modified, as that case was decided under
Act. No. 2710, when absolute divorce was then allowed and
had for its grounds the same grounds for legal separation
under the New Civil Code, with the requirement, under such
former law, that the guilt of defendant spouses had to be
established by final judgment in a criminal action. That
requirement has not been reproduced or adopted by the
framers of the present Civil Code, and the omission has been
uniformly accepted as a modification of the stringent rule in
Francisco v. Tayao.