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JANUARY 9, 2014 – Thursday (Title II, Legal Separation, Arts.

55-67, Family Code)

THE FAMILY CODE


OF THE PHILIPPINES

STUDY GUIDE : (January 9 – Thursday, Arts. 55-67)

 CAVEAT: It will be to your best interest if you make sure that


you finish all reading assignments and/or directives in accordance
with the timeframe outlined in the course syllabus. 

TITLE II
LEGAL SEPARATION
(Arts. 55-67)

 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;

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(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. (97a)

 MEMORIZE this provision.

 Concept of legal separation. –

 Legal separation is the separation of the spouses from bed and board without
severing the marriage bond.

 It is a legal remedy available to parties in a valid but failed marriage for the
purpose of obtaining a decree from the court entitling the injured spouse to certain
reliefs, such as:
(a) To live separately from each other (without affecting the marital bond that
exists between the spouses);
(b) The dissolution and liquidation of their absolute community or conjugal
partnership property regime; and
(c) The support and custody of their minor children.

 Legal separation distinguished from separation de facto . –

 Legal separation can be effected only by decree of court, while the parties
can separate at any time without court order.

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 Legal separation necessarily results in the dissolution of the parties’


absolute community of property or conjugal partnership. The guilty party can no longer
inherit from the innocent party, and the former’s share in the net profits of the absolute
community of property or conjugal partnership is forfeited.
In separation de facto, the property relations of the spouses remain and they
are still heirs of each other, unless the innocent spouse disinherits the guilty spouse in
his or her will.

 Legal separation distinguished from annulment of marriage. –

 In legal separation, the marriage is not defective; in annulment, the


marriage is defective.
 In legal separation, the grounds arise after the marriage; in annulment, the
grounds must exist at the time of or before the marriage.
 In legal separation, the parties are still married to each other and cannot
remarry; in annulment, the marriage is set aside and the parties can marry again.

 Legal separation distinguished from annulment of marriage. –

 In legal separation, the common life of the spouses is suspended, both as


to person and as to properties.
In separation of property, only the property relations of the spouses are
suspended – that is, they may still be living together, but their absolute community of
property or conjugal partnership is dissolved.

 Legal separation cannot be granted on mere agreement of the parties


(Art. 60, Family Code).
Separation of property can be effected by agreement of the parties, subject to
court approval (Arts. 134 and 136, Family Code).

 Legal separation always involves separation of property.


There can be separation of property without legal separation.

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 Exclusivity of grounds for legal separation. –

 The grounds enumerated by law to warrant a judicial decree of legal


separation are ONLY those enumerated in Article 55. They may or may not exist at
the time of the marriage ceremony. As a general rule, they usually occur after the
celebration of the marriage. No other grounds can be invoked by any party other than
those stated by law. This is in furtherance of the policy of the State to foster unity in
and to preserve the marital relation as the same is essential to the public welfare.

 What are the grounds for legal separation under Article 55? –

 REPEATED PHYSICAL VIOLENCE OR GROSSLY ABUSIVE CONDUCT.


 Infliction of physical violence or grossly abusive conduct (which includes


offensive words or language) is a ground for legal separation under Article 55 (1) if
the act is repeatedly resorted to by the respondent-spouse against the following
persons:
(a) The petitioner-spouse;
(b) The common child of the spouses;
(c) The child of the petitioner-spouse in a previous relationship;
(d) An adopted child.

 If the physical violence is directed against the wife, a common child or a child
of the wife, the same is also punishable under R.A. No. 9262, otherwise known as the
“Anti-Violence Against Women and Their Children Act of 2004.”

 COMPULSION BY PHYSICAL VIOLENCE OR MORAL PRESSURE TO


CHANGE RELIGIOUS OR POLITICAL AFFILIATION. –

 Under Article 55 (2), the physical violence and moral pressure must be for a
specific purpose – to compel the petitioner against his or her will to change religious
or political affiliation.

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 It is required that the moral pressure must be directed against the petitioner.
If the same is directed against a common child or a child of the petitioner to compel
said child to change religious or political affiliation, there is NO ground for legal
separation.

 CORRUPTION OR INDUCEMENT TO ENGAGE IN PROSTITUTION. –


 A spouse who attempts to corrupt or induce his or her spouse (or the latter’s
child, or their common or adopted child) to engage in prostitution can be sued for legal
separation by the injured spouse.

 It is important to NOTE that even if the spouse is not the one who personally
does the corruption or inducement, legal separation is still justified if the guilty spouse
connives in such corruption or inducement.

 FINAL JUDGMENT INVOLVING MORE THAN SIX YEARS


IMPRISONMENT. –

 If the respondent-spouse is convicted of a crime by final judgment, and


sentenced by the court to imprisonment of more than six (6) years, this will give rise
to a cause of action for legal separation on the part of the petitioner-spouse:
(a) Even if the respondent is pardoned by the President; AND
(b) Regardless of the nature of the crime for which the respondent is convicted.

 DRUG ADDICTION, HABITUAL ALCOHOLISM, LESBIANISM OR


HOMOSEXUALITY. –

 As grounds for annulment of marriage under Article 46(4) in relation


to Article 45(3). – If these conditions are already present at the time the marriage is
celebrated, but the same is concealed from the other party, there is fraud which
constitutes as ground for annulment of marriage.

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If there is no concealment, and such circumstance is known to the other party at


the time of the marriage, there is no ground to annul the marriage.
 As grounds for legal separation under Article 55 (5) & (6). – To qualify
as grounds for legal separation, it is required that these causes arise only after the
celebration of the marriage.

 As grounds for declaration under Article 36. – If any of these causes was
already present at the time of the marriage and, depending upon its gravity, has
deprived the respondent-spouse of his or her capacity to perform the essential
obligations of marriage, the said spouse may be declared as one suffering from
psychological incapacity under Article 36, which is a ground for declaring the marriage
null and void.

 BIGAMY. –
 Contracting a subsequent bigamous marriage is a ground to declare the
subsequent marriage as void ab initio, but it does not affect the validity of the prior
marriage. In such a situation, the remedy of the aggrieved party in the prior marriage
is legal separation under paragraph (7) of Article 55.

 The mere act of contracting a second or subsequent marriage during the


subsistence of the prior valid marriage is a ground for legal separation, even if the
second marriage is void ab initio on grounds other than the existence of the first
marriage.

 Bigamy is a ground for legal separation, whether the second marriage was
contracted in the Philippines or abroad.

 If the guilty spouse did not contract a second marriage, but is only living with
his or her lover, the ground will be “sexual infidelity”.

 SEXUAL INFIDELITY OR PERVERSION. –

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 The husband and the wife are obliged to observe mutual love, respect and
fidelity. Hence, a person who maintains an intimate love affair with another person
other than his or her spouse is guilty of betraying the trust of that spouse, and
essentially commits an act of sexual infidelity.

 To constitute a ground for legal separation, the act of sexual infidelity need not
amount to the crimes of adultery (on the part of the wife) or concubinage (on the part
of the husband) punished under the Revised Penal Code. As a consequence, even a
husband’s single act of sexual intercourse with a woman other than his wife may
warrant the issuance of a decree of legal separation.

 Sexual perversion includes all unusual or abnormal sexual practices which


may be offensive to the feelings or sense of decency of either the husband or the wife.

 As to sexual perversion, this would include engaging in such behavior not


only with third persons but also with the spouse.

 ATTEMPT ON THE LIFE OF THE SPOUSE. –


 This cause implies criminal intent to kill, i.e., attempted or frustrated parricide.
 The attempt on the life of the spouse must proceed from an evil design and
not from any justifiable cause like self-defense or from the fact that the spouse caught
the other in flagrante delicto having carnal knowledge with another man or woman.

 No previous criminal conviction is required for the legal separation case to


prosper. The criminal attempt can be proven by a preponderance of evidence in the
civil case for legal separation.

 UNJUSTIFIED ABANDONMENT. –
 A spouse is deemed to have abandoned the other when he or she has left
the conjugal dwelling without intention of returning (Article 101, Family Code).

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 Abandonment does not refer to mere physical separation, but implies a total
renunciation of marital duties. Hence, there is no abandonment if the husband or the
wife, despite physical separation from his or her spouse, neither neglects the
management of the conjugal partnership nor ceases to give support to his or her
spouse and children.

 For abandonment to constitute a ground for legal separation, it is required


that:
(a) The abandonment must be without a justifiable cause. – The act of
separation, and the continued intent to remain separate, must be
wrongful in the sense that there is no reasonable excuse for the one who
separated. Thus, in a case where the wife left the conjugal abode
because she was being battered by the husband, the Supreme Court
ruled that the act of the wife was for a justifiable cause and therefore
cannot be a ground for legal separation ( Ong vs. Ong, G.R. No.
153206, October 23, 2006, 505 SCRA 76).
(b) The abandonment must be for more than one (1) year.

 ART. 56. – The petition for legal separation shall be denied


on any of the following grounds:

(1) Where the aggrieved party has consented to the


commission of the offense or act complained;
(2) Where the aggrieved party has condoned 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 the
decree of legal separation; or
(6) Where the action is barred by prescription. (100a)

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 MEMORIZE this provision.


 ART. 57. – An action for legal separation shall be filed
within five years from the time of the occurrence of the cause.
(102a)

 DEFENSES IN LEGAL SEPARATION. – Generally, a petition for legal


separation may be filed only by the innocent spouse. It may happen, however, that
both spouses are in pari delicto, or the petitioner-spouse may have committed or
omitted an act which will extinguish his or her right to file the petition for legal
separation. In situations like this, the respondent-spouse may put up any of the
following applicable defenses, to wit:

 CONDONATION. –

 Defined. – Condonation is the conditional forgiveness or remission, by a


husband or wife, of a matrimonial offense which the other has committed.

 It is conditional. – It is a conditional forgiveness because the condonation


is subject to an implied condition that the party forgiven will abstain from the
commission of the like offense thereafter.
 A subsequent offense on the part of the offending spouse revokes or
nullifies the condonation and revives the original offense.

 It is given AFTER the act. – Condonation is forgiveness after the


commission of the offense or act complained of and not before. If it is given prior to
the act, it is consent.

 Condonation of one sexual act of the wife outside marriage does not
necessarily imply condonation of the others. Each act is a separate act of adultery
(People vs. Zapata and Bondoc, 88 Phil. 688). Pardon applies to previous and not
to subsequent adulterous acts.

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 It may be express or implied. – Condonation is express when it is


manifested in words or writing. It is implied when it can be deduced from the conduct
of the offended spouse showing the intention to forgive.

 There is implied condonation when the offended spouse, having full


knowledge and awareness of the wife’s infidelity, deliberately and willfully cohabited or
had sexual intercourse with the unfaithful wife ( Bugayong vs. Ginez, 54 O.G. 1827;
100 Phil. 616).

 In one American case, however, it was held that where the wife in an
effort for reconciliation for the sake of the children cohabited with the husband one
night in a hotel, it was held that there was no condonation (Hawkins vs. Hawkins,
104 Gal. App. 608, 286 Pac. 747).

 The act of giving money to an erring wife after the commission of the act
complained of on several occasions, and the fact that no action was filed against her,
are sufficient to establish condonation (Almacen vs. Baltazar, 103 Phil. 1147).

 In Ocampo vs. Florencio , 107 Phil. 35 (1960), the wife left the conjugal
home after her adulterous acts were discovered. The Supreme Court held that the
failure of the husband to look actively for her adulterous wife does not constitute
condonation or consent of the wife’s adulterous acts. It is NOT the duty of the
husband to search for the wife. It is the duty of the wife to return home.

 CONSENT. – This is acquiescence or permission or willingness to agree to the


commission of the act complained. The party who gives corrupt consent to the
offending party is barred or prohibited from pursuing a case for legal separation.

 An agreement between the parties that they agree to live separately from
each other, and that they will not object to the other’s act of sexual infidelity, adultery
or concubinage has been declared by the Supreme Court as void. However, even if
the agreement is void, the Court held that it is a manifestation of their clear consent to
the commission of the sexual infidelity (People vs. Schneckenburger, 73 Phil. 413).

 In People vs. Sensano, 58 Phil. 73, the husband, knowing that his wife
resumed living with her paramour, did nothing to interfere with their relations or to
assert his rights as husband. Instead, he left for the Territory of Hawaii, where he
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remained for seven years, totally abandoning his wife and child. The Supreme Court
ruled that the acts of the husband constituted consent to the adulterous acts of the
wife; hence, he cannot file a case for adultery against the wife.

 Entrapment does not constitute consent nor connivance. – If a


husband pretended to go away and came back unexpectedly for the purpose of
catching his wife (whom he suspected of infidelity) in the act of adultery, there is
entrapment but not consent to the adultery. Neither is there connivance (Robbins
vs. Robbins, 54 Am. Rep. 448).

 CONNIVANCE. – This is the tacit permission to the commission of the act


complained of, or to be in secret understanding with the offending spouse for the
commission of the act.

 If a husband hires a detective to spy on his wife, and tells him to have sexual
intercourse with her in order to have evidence, this will be a case of connivance
(Rademacher vs. Rademacher, 74 N.J. Eq. 570, 70 Atl. 687). It is the duty of a
spouse to protect the other spouse from temptation, and not to connive in his or her
downfall.

 Abandonment by the wife knowing (as she said she did) that the husband
would naturally seek the arms of other women, constituted consent and connivance
(Richardson vs. Richardson, 114 N.Y. Supp. 912).

 To evade connivance, there must be no active participation on the part of a


spouse for the downfall of the other, as by providing actively the opportunity for the
wrong doing directly or indirectly.

 RECRIMINATION OR EQUAL GUILT. – This arises when both parties are in


pari delicto. When both parties are guilty of an act or acts which are grounds for
legal separation, neither can come to court and seek legal separation as against the
other.

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 He who comes to court must come with clean hands. It does not matter that
one had committed the offense first, and the other merely retaliated, nor that one is
more guilty than the other (Stilman vs. Stilman, 187 N.Y. Supp. 383).

 Where the husband committed concubinage, the action for legal separation
was denied by the court on the ground that the petitioner-wife was herself guilty of
adultery. The rule remains even if one of the parties had pardoned the other and the
latter had not pardoned the former. (Benedicto vs. Dela Rama, 3 Phil. 34.)

 In Ong vs. Ong , 505 SCRA 76 (2006), the wife filed an action for legal
separation against the husband, who subjected her to physical beatings. The
husband sought the dismissal of the case on the ground of equal guilt. He contended
that his wife abandoned him. The Supreme Court rejected the husband’s position.
The law specifically provides that, for abandonment to be a ground for legal
separation, it must have been without justifiable cause. In the case of this battered
wife, her separation from her husband was clearly with just cause.

 COLLUSION. –

 Concept. – Collusion presupposes an agreement of the husband and wife to


make it appear in court that one of them has committed a ground for legal separation.
It includes an agreement by which evidence of an offense not committed is fabricated
or made-up, or whereby evidence of a valid defense by the respondent-spouse is
suppressed.

 Mode and purpose. – Collusion, if not expressed, may be implied from


the acts of the spouses. The precise purpose of the collusion is to enable the
petitioner-spouse to obtain a decree of legal separation.

 Respondent’s failure to file answer, a possible indication of collusion;


family court’s duty. –The collusion between the parties in an action for legal
separation may cause the denial of the action. It is suspected that there is collusion
between the parties if the defendant does not file an answer despite service of
summons. Hence, it is incumbent upon the court to order the prosecuting attorney or
fiscal assigned to it to take steps to prevent collusion between the parties and to take

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care that the evidence is not fabricated or suppressed (Article 60, Family Code).
The fiscal may conduct an investigation of the parties to determine if there is collusion
or not. If he finds that there is, he can recommend the dismissal of the action. If none,
then, the case may proceed. He normally reports his findings to the court.
 A legal separation obtained through collusion is void.
 CASE: In expounding on the concept of collusion, the Supreme Court, in
De Ocampo vs. Florenciano, 107 Phil. 35 (1960), held:

The mere circumstance that defendant told the Fiscal that she ‘liked also’ to be
legally separated from her husband, is not obstacle to the successful prosecution of the
action. When she refused to answer the complaint, she indicated her willingness to be
separated. Yet, the law does not order the dismissal. Allowing the proceeding to
continue, it takes precautions against collusion, which implies more than consent or lack
of opposition to the agreement.
xxx xxx xxx
Here, the offense of adultery had really taken place according to the evidence. 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 requests the Fiscal to prosecute.
She could not have practiced deception at such a personal risk.
In this connection, it has been held that 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.
And proof that the defendant desires the divorce and makes no defense, is not by
itself collusion.

 PRESCRIPTION. –

 Concept. – Prescription is the extinction or loss of the right to file an action,


for failure to file the same within the period fixed by law (Art. 1139, NCC).

 Prescriptive period to file action. – Under Article 57, an action for legal
separation shall be filed within five (5) years from the time of the occurrence of the
cause, irrespective of when the plaintiff has discovered the act complained.

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 The time of discovery of the ground for legal separation is NOT material
in counting the prescriptive period. Hence, if the wife commits sexual infidelity and the
husband discovered such ground only after six (6) years from the time it was actually
committed, the husband cannot anymore file the legal separation case as the filing of
the same has already prescribed.

 In the case of adultery by the wife, each act of sexual intercourse is a


separate act of adultery. Hence, the prescriptive period shall be computed from the
last act of adultery, unless there was condonation or consent [ De Ocampo vs.
Florenciano, 107 Phil. 35 (1960)].

 Where the wife heard rumors of her husband’s infidelity but did not
discuss the matter with her husband, and it was only later that she confronted him and
he admitted the act, the period of prescription must be computed from such admission
and not from her receipt of hearsay information about her husband’s infidelity
(Contreras vs. Macaraig, 33 SCRA 222).

 Family court can take judicial notice of prescription. –


 Illustrative case: A and B are married. In B’s action for legal
separation, she alleged that in 1982, she discovered that A committed concubinage.
The action was filed on November 3, 1991. If you were the judge, would you
dismiss the action even if prescription is not alleged in the answer of the A? Why?
Answer: YES. In Brown vs. Yambao, 102 Phil. 168, it was held that it is true
that the wife has not interposed prescription as a defense. Nevertheless, the courts
can take cognizance thereof, because actions seeking a decree of legal separation, or
annulment of marriage, involve public interest, and it is the policy of our law that no
such decree be issued, if any legal obstacles thereto appear upon the record.
If prescription is apparent from the allegations in the complaint for legal
separation, the court can dismiss it motu proprio. If prescription is not interposed as a
defense but becomes manifest after trial, the court may still dismiss the complaint
motu proprio. This is a means employed by the State to preserve the sanctity of the
marriage and the solidarity of the family.

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 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. (103a)

 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)

 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)

 Procedure. – The rules of procedure to be followed in petitions for legal


separation is governed by Supreme Court En Banc Resolution A.M. No. 02-11-11-SC,
effective March 15, 2003.

 Answer to complaint. – Upon the filing of a complaint for legal


separation by the petitioner, the respondent shall be required to answer within 15 days
from receipt of the summons and a copy of the petition.

 No default judgment in legal separation. – If the respondent fails to


answer or appear, he or she cannot be defaulted, and 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.

 Duty of the prosecutor. – Even if the party answers, the prosecutor is


also mandated to be present during the trial, to further make sure that there is no
collusion and the evidence is not fabricated or suppressed .

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 Cooling-off period. – Whether or not the respondent files an answer to the


complaint, no hearing on the merits of the petition shall be set by the courts for six (6)
months.

 Purpose. – The six months period is evidently intended as a cooling-off


period to make a possible reconciliation between the spouses (Araneta vs.
Concepcion, 99 Phil. 709). The healing balm of time may aid in the process
(Somosa-Ramos vs. Hon. Vamenta, Jr., et al., 46 SCRA 110).

 The period is imposed to give them the opportunity for dispassionate


reflection, for during this period, there is the possibility that the passion of the parties
may subside by the persuasive intervention of well-meaning friends, members of the
family and marriage counsellors.

 If there is reconciliation prior to the trial, the court can dismiss the action.
In fact, even after a judgment has been rendered, if the parties manifest that they have
already reconciled, the court in the same proceedings can still set aside the decree of
legal separation.

 Hearing of ancillary remedies may proceed. – What is prevented from


being heard during the six-month period is the hearing on the merits with respect to
the validity or invalidity of the ground for legal separation.

 Any other incidents in the petition for legal separation such as the
determination of the custody of the children, alimony and support pendent lite may be
heard within the six-month cooling-off period ( Araneta vs. Concepcion, 99 Phil.
709). The law expressly enjoins that these incidients should be determined by the
court according to the circumstances. If these are ignored, or the courts close their
eyes to actual facts, rank injustice may be caused.

 The hearing of ancillary remedies such as for preliminary injunctions


may proceed to prevent for instance the husband from disposing conjugal properties
designed to injure the interest of the wife (De la Vina vs. Villareal, et al., 41 Phil.
13).

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 A motion to dismiss during the six-month cooling-off period may


likewise be filed if there are grounds to do so. Hence, if from the face of the petition or
complaint, it clearly appears that the legal separation case has already prescribed, a
motion to dismiss the suit can be filed within the six-month cooling off period and may
even be decided by the court within the said period.

 Cooling-off period not applicable to domestic violence cases. – The


cooling-off period under Article 58 is not applicable in a case involving domestic
violence, pursuant to Section 19 of R.A. 9262 (“Anti-Violence Against Women and
Their Children Act of 2004”). In such cases, the court shall proceed on the main case
and other incidents of the case as soon as possible.

 Effort towards reconciliation; court’s duty. –


 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.

 The purpose of Article 58 is to preserve the marriage, and to see to it


that all avenues for reconciliation are exhausted to prevent the break-up of the
marriage. The Court must use its moral influence over the parties and its persuasive
powers to try to reconcile them. Many parties go to court in the heat of anger and
passion, without even talking to each other about their problem. During this period of
suspension of the trial proceeding for six (6) months, the Court must give the parties
opportunities for communication, as well as provide them with counselling, before it
should hear the case on the merits. Thus, it is the practice of family courts to set the
case for legal separation for reconciliation conferences many times. It is only when
they do not succeed in reconciling the spouses that they set the case for hearing on
the merits.

 Judgment cannot be based on confession of judgment or stipulation


of facts. –

 After hearing, the case is submitted for decision. Judgment shall then be
issued by the judge either granting the legal separation or denying the same.

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Judgment, however, cannot be based on a confession of judgment or stipulation of


facts. This rule is intended to prevent collusion between the parties.

 If the respondent does not answer the complaint or appear at the trial,
the petitioner must still present his or her evidence.

 The material facts alleged in the complaint for legal separation shall
always be proved. Proof of the facts may be either direct or circumstantial, but mere
preponderance of evidence is enough, unlike in criminal cases where there must be
proof beyond reasonable doubt.

 A decree of legal separation based on a mere stipulation of facts of the


parties, without proof of such facts, is void and of no effect.

 Even if the respondent admits the allegations of the petition or the


complaint, if there is evidence of the ground for legal separation independently of such
admission, the decree is still valid. What the law prohibits is a judgment based solely
on the defendant’s confession. (De Ocampo vs. Florenciano, 107 Phil. 35.)

 Death of a party abates an action for legal separation. – An action for


legal separation which involves nothing more than the bed-and-board separation of
the spouses is purely personal. Being personal in character, it follows that the death
of one party to the action causes the death of the action itself – actio personalis
moritur cum persona.

 RULE ON LEGAL SEPARATION (Supreme Court En Banc


Resolution A.M. No. 02-11-11-SC, effective March 15, 2003). – Section 21 of
this rule provides:

“Section 21. Effect of death of a party; duty of the Family Court


or Appellate Court. – (a) In case a party dies at any stage of the
proceedings before the entry of judgment, the court shall order the case
closed and terminated without prejudice to the settlement of estate in proper
proceedings in the regular courts.

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JANUARY 9, 2014 – Thursday (Title II, Legal Separation, Arts. 55-67, Family Code)

(b) If the party dies after the entry of judgment, the same shall be
binding upon the parties and their successors in interest in the settlement of
the estate in the regular courts.

 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)

 Effects of filing of petition for legal separation. – The filing of the


petition for legal separation has the following effects:

 The spouses shall be entitled to live separately from each other.

 The right of consortium ceases. The husband has no more right to have
sexual intercourse with his wife. If he forces himself upon her, he can be charged with
rape.
 The administration of the absolute community of property or conjugal
partnership may be agreed upon in writing between the parties.
 In the absence of an agreement between the parties, the court shall
designate the husband or the wife to manage the absolute community or
conjugal partnership property.
 The court may even designate a third person to administer the
properties of the couple.
 In every case, the administrator appointed by the court shall have
the same powers and duties as a guardian under the Rules of Court. He or

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JANUARY 9, 2014 – Thursday (Title II, Legal Separation, Arts. 55-67, Family Code)

she cannot, therefore alienate (e.g. sell or dispose) or encumber (e.g.


mortgage) any property of the spouses without court authority.

 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)

 The law makes cross-reference to Article 49 of the Family Code which


mandates that during the pendency of an action for annulment or declaration of nullity
of marriage, the court shall provide for the support of the spouses, and the custody
and support of the common children. The court shall also give paramount
consideration to the moral and material welfare of the children and their choice of the
parent with whom they wish to remain. All these measures are applicable in
cases of legal separation. (Refer to the detailed discussion under Article 49 in your
January 7, 2014 Study Guide.)

 ART. 63. – The decree of legal separation shall have the


following effects:

(1) The spouses shall be entitled to live separately from each,


but the marriage bonds shall not be severed;

(2) The absolute community or the conjugal partnership shall


be dissolved and liquidated but the offending spouse shall have
no right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited
in accordance with the provisions of Article 43 (2);

(3) The custody of the minor children shall be awarded to the


innocent spouse, subject to the provisions of Article 213 of this
Code; and

(4) The offending spouse shall be disqualified from inheriting


from the innocent spouse by intestate succession. Moreover,

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JANUARY 9, 2014 – Thursday (Title II, Legal Separation, Arts. 55-67, Family Code)

provisions in favor of the offending spouse made in the will of the


innocent spouse shall be revoked by operation of law. (106a)

 ART. 64. – After the finality of the decree of legal


separation, the innocent spouse may revoke the donations made
by him or by her in favor of the offending spouse, as well as the
designation of the latter as a beneficiary in any insurance policy,
even if such designation be stipulated as irrevocable. The
revocation of the donation shall be recorded in the registries of
property in the places where the properties are located.
Alienations, liens and encumbrances registered in good faith
before the recording of the complaint for revocation in the
registries of property shall be respected. The revocation of or
change in the designation of the insurance beneficiary shall take
effect upon written notification thereof to the insured.
The action to revoke the donation under this Article must be
brought within five years from the time the decree of legal
separation has become final. (107a)

 EFFECTS OF DECREE OF LEGAL SEPARATION. – Upon the finality of


the decree of legal separation, the following effects and consequences follow, to wit:

 Marriage bond maintained. – The spouses shall be entitled to live


separately from each other, but the marriage bond shall not be severed.

 The parties cannot get married again to others because they are still
married. If either party gets married again, he or she commits bigamy.

 Although the parties have the right to live separately from each other, the
obligation of mutual fidelity remains. Hence, the wife may be convicted of adultery, or
the husband of concubinage, if either commits any of such crimes.

 Since the right to cohabitation ceases, the husband cannot insist in


having sexual intercourse with his wife. Forcing the wife to sexual intercourse against
her will constitutes rape.

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 Liquidation of property. – The absolute community or the conjugal


partnership between the spouses shall be dissolved and liquidated.

 The offending spouses’ share of the net profits earned therefrom shall be
forfeited in favor of the common children, or if there are none, in favor of the children
of the guilty spouse by a previous marriage, or in default of children, the innocent
spouse.
 Custody of minor children. – The custody of the minor children shall be
awarded to the innocent spouse subject to the provisions of Article 213 of the Family
Code.

 The custody of the minor children may be awarded to the wife, even if
guilty, if the children are under seven years of age, unless there are compelling
reasons not to award the children’s custody in her favor.

 Minor children above seven years of age may choose the parent they
wish to live with, whether guilty or innocent. Their choice shall be respected unless
the parent so chosen is unfit.

 Intestate and testate disqualification. – The offending spouse shall be


disqualified from inheriting from the innocent spouse whether by intestate or testate
succession.

 Even if the innocent spouse forgets or fails to revoke a will in favor of the
offending spouse, the will becomes ipso jure revoked.

 If the will is executed before the decree of legal separation, the provisions
in favor of the guilty spouse will be inoperative.

 If the will is executed after the decree, it is submitted that the provisions
shall be void, unless there is reconciliation. This will prevent the guilty spouse from
exerting force and intimidation against the innocent spouse to make a will.

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 The conviction of the wife of adultery does not disqualify her to inherit
from the offended husband, if there is no decree of legal separation between them, for
Article 1032 of the Civil Code does not make such an act of unworthiness that would
render the guilty spouse incapable of succeeding from the innocent spouse. To
disqualify the wife from inheriting from the offended husband, the latter must file a
case of legal separation against the wife. This is also provided in Article 1002 of the
Civil Code which states that, “in case of a legal separation, if the surviving spouse
gave cause for the separation, he or she shall not have any of the rights granted in the
preceding articles” (meaning the right to inherit by intestate succession).

 Donations and beneficiary in insurance . – Donations and the act of the


innocent party in designating the guilty spouse as a beneficiary in an insurance policy
are essentially acts of liberality and the law gives the option to the innocent party
whether or not he or she will revoke the donation or the designation as beneficiary of
the guilty party in an insurance.

 The decree of legal separation does not affect the validity of any donation
propter nuptias made by the innocent spouse in favor of the offending spouse. Neither
does it affect the validity of the designation of the guilty spouse as beneficiary in any
insurance policy of the innocent spouse.

 However, the innocent spouse has the right to revoke said donation, as
well as the designation of the guilty spouse as beneficiary in his or her insurance
policy, even if such designation is stipulated as irrevocable.

 Prescriptive period to revoke donations. – If the innocent spouse


decides to revoke a donation, he or she must file an action for revocation within five
(5) years from the finality of the decree of legal separation, in the same court which
decreed the legal separation.
 NOTE, HOWEVER, that if the donation is void, such as in the
case of a donation in violation of Article 87, the right to bring an
action to declare the nullity of the donation does not prescribe.

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 Lis pendens necessary to protect innocent spouse. – In order to


bind third persons, the complaint for revocation must be recorded in the registries of
property in the places where the properties are located.

 Alienations, liens, and encumbrances registered in good faith before


the recording of the complaint for revocation with the proper registry of
property shall be respected.
 For the protection of the innocent spouse who had decided to
exercise the right to revoke, he or she should have his or her complaint for
revocation immediately recorded with the registry of property where the
concerned property is located.
 This act of recording known as lis pendens will warn third persons of
the pendency of the case. After the notice of lis pendens is recorded, the
stranger who acquires the property affected by the lis pendens takes it
subject to the outcome of the litigation.

 Written notification required in revocation as beneficiary. – With


respect to the revocation of the designation of the offending spouse as beneficiary in
the insurance policy of the innocent spouse, such revocation or change in the
designation of the insurance policy shall take effect only upon written notification
thereof to the insured.

 OTHER EFFECTS OF DECREE OF LEGAL SEPARATION. – There are


other effects of the decree of legal separation not mentioned in Article 63 and 64, to
wit:

 Cessation of support. – The obligation of mutual help and support under


Article 68 ceases. However, the court may still order the guilty spouse to support the
innocent one (Article 198, Family Code). But the guilty spouse cannot ask for support
from the innocent spouse.

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JANUARY 9, 2014 – Thursday (Title II, Legal Separation, Arts. 55-67, Family Code)

 Wife’s use of surname. – The wife shall continue using her name and
surname employed before the legal separation.
 This is so because her married status is unaffected by the separation,
there being no severance of the vinculum. It seems to be the policy of the
law that the wife should continue to use the name indicative of her
unchanged status for the benefit of all concerned.

 ART. 65. – If the spouses should reconcile, the


corresponding joint manifestation under oath duly signed by
them shall be filed with the court in the same proceeding for
legal separation. (n)

 Reconciliation defined. – This is the mutual agreement of the spouses to


resume their marital relationship thus putting an end to their marital differences. It is
nothing more than the resumption of their marital relationship as if nothing unpleasant
had happened between them.

 Parties to notify court. – In the event of a reconciliation, which the court


must encourage, the spouses must file a “joint manifestation” under oath duly
signed by both, in the same proceeding for legal separation. This is true whether the
proceeding is still pending or it has already been terminated by a decree of legal
separation.

 De facto reconciliation; its effect. – If, after the issuance of the decree of
legal separation, the parties simply reconcile and resume their marital relations
previous to the decree but without obtaining a decree of reconciliation from the same
court which issued the decree of legal separation, their de facto reconciliation does not
have the effect of setting aside the decree of legal separation.

 ART. 66. – The reconciliation referred to in the preceding


Article shall have the following consequences:

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JANUARY 9, 2014 – Thursday (Title II, Legal Separation, Arts. 55-67, Family Code)

(1) The legal separation proceedings, if still pending, shall


thereby be terminated in whatever stage; and

(2) The final decree of legal separation shall be set aside, but
the separation of property and any forfeiture of the share of the
guilty spouse already effected shall subsist, unless the spouses
agree to revive their former property regime. (108a)

 ART. 67. – The agreement to revive the former property


regime referred to in the preceding Article shall be executed
under oath and shall specify:

(1) The properties to be contributed anew to the restored


regime;
(2) Those to be retained as separate properties of each spouse;
and
(3) The names of all their known creditors, their addresses
and the amounts owing to each.

The agreement of revival and the motion for its approval shall
be filed with the court in the same proceeding for legal
separation, with copies of both furnished to the creditors named
therein. After due hearing, the court shall in its order, take
measures to protect the interest of creditors and such order shall
be recorded in the proper registries of properties.
The recording of the order in the registries of property shall not
prejudice any creditor not listed or not notified, unless the
debtor-spouse has sufficient separate properties to satisfy the
creditor’s claim. (195a, 108a)

 WHAT ARE THE EFFECTS OF RECONCILIATION? – The reconciliation,


when effected by the spouses in accordance with Article 65, shall have the following
consequences:

 On their personal relations. –

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JANUARY 9, 2014 – Thursday (Title II, Legal Separation, Arts. 55-67, Family Code)

 Reconciliation means resumption of cohabitation and marital relations. It is a


bilateral act requiring the common consent of the spouses, express or implied.

 Mere friendly relations between the parties, without actually living


together as before, is not sufficient to constitute reconciliation.

 There is no reconciliation where the spouses simply maintain temporary


occupancy of separate bedrooms in the same house.

 The spouses shall again be entitled to joint custody of their children.

 The offending spouse shall again be entitled to inherit from the innocent
spouse by way of intestate succession.

 The provisions in the will of the innocent spouse favoring the offending
spouse shall be revived automatically, as if the same had not been revoked.

 Any revocation of donations in favor of the offending spouse, or revocation of


the designation of the offending spouse as beneficiary in the innocent spouse’s
insurance policy, already effected, shall likewise be set aside, as if the same had not
been revoked.

 After reconciliation, if one of the spouses commits another act constituting a


ground for legal separation, the innocent spouse can file another action for legal
separation based on the new ground.

 On the proceedings for and decree of legal separation. –

 If the legal separation case is still pending, it shall be terminated in


whatever stage by order of the court.

 If the decree of legal separation has already been issued, the decree
will be set aside by order of the court.

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JANUARY 9, 2014 – Thursday (Title II, Legal Separation, Arts. 55-67, Family Code)

 The court order containing the termination of the case OR the setting
aside of the decree, as the case may be, shall be recorded in:
(a) The LCR where said decree was entered; AND
(b) The LCR of the place where the parties reside, if they have changed
residence after the decree is issued.

 On the property relations of the spouses. –

 Revival of former property regime. –

 Upon the finality of the decree of legal separation, there shall be a


liquidation of the absolute community or the conjugal partnership, and the spouses
shall thereafter be governed by a regime of complete separation of property (Art.
62[2], Family Code).

 Once the spouses reconcile, and the court issues a decree of


reconciliation, their former property regime, be it absolute community or conjugal
partnership, IS NOT automatically revived.

 Under Article 67, the separation of property between the spouses and
any forfeiture of the share of the guilty spouse shall continue to subsist after the
reconciliation, unless the spouses agree to revive their former property regime.

 If the spouses agree to revive their former property regime, they shall
execute an agreement under oath specifying:
(a) The properties they are contributing anew to the restored regime;
(b) The properties to be retained by each spouse as their separate property;
and
(c) The names and addresses of all known creditors of each spouse, the
amount owing to each creditor, and the liens held by each creditor, if any.

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JANUARY 9, 2014 – Thursday (Title II, Legal Separation, Arts. 55-67, Family Code)

 The spouses shall then submit to the court the above-mentioned


agreement of revival, together with a verified motion asking for its approval. The
motion shall be submitted in the same proceeding for legal separation.

 Copies of the agreement and the motion shall be furnished the creditors
named in the revival agreement.

 After due hearing, the court shall issue an order approving the
agreement, but it shall take measures to protect the interests of the creditors named
therein.

 The court order approving the parties’ agreement shall be recorded in


the proper registries of property in all the places where the spouses have properties.
This recording is in addition to the recording of the order setting aside the decree of
legal separation in the civil registry where the decree of legal separation is recorded,
as well as in the place where the parties reside, if they have changed residence. In
other words, there will be double recording in the proper registries of property, and in
the proper civil registries (LCR’s).

 The recording of the said order shall not, however, prejudice creditors
not listed or not notified of the proceedings, unless the debtor-spouse has
sufficient separate properties to satisfy the claims of such creditors. In other
words, the revival of the old property regime between the parties is without prejudice
to vested rights already acquired by creditors prior to such revival. In effect, a legal
lien is created in favor of unsecured creditors. Thus,
(a) Contractual lienholders retain their liens;
(b) Creditors without liens are given a legal lien;
(c) In case of insufficiency of properties of the debtor-spouse with which to
pay his or her creditors, the future share of said spouse in the community
or conjugal properties will answer for his personal obligations.

 There is no more publication of the proceedings because publication is


very expensive and it is usually made in newspapers that nobody reads. Anyway,
creditors not personally notified of the proceedings are not affected by the same. The
creditors not notified of the proceedings may assert their claims against the debtor-
spouse within the ordinary periods of prescription.

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JANUARY 9, 2014 – Thursday (Title II, Legal Separation, Arts. 55-67, Family Code)

 Adoption of new property regime. –

 The new Rule on Legal Separation appears to allow the spouses, upon
reconciliation, to adopt a regime of property relations different from that which they
had prior to the filing of the petition for legal separation. This rule, however, does not
find any support under the Family Code since the latter speaks only of “revival” of the
former property regime of the spouses in case of reconciliation and not an adoption
of an altogether different property regime. At any rate, even assuming that the
spouses may adopt a new regime of property relations upon reconciliation, it is
submitted that they may not adopt either absolute community or conjugal partnership
of gains as their new property regime since these two property regimes can only
commence at the precise moment that the marriage is celebrated and any stipulation,
express or implied, for the commencement of these regimes at any other time shall be
void.
END OF THE TOPIC REMINDERS:
1. Study and master the principles under each topic.
2. Know the answer to the application/problems.
3. Memorize the provisions required to be committed to memory.
4. When a case is required in this study guide to be read in its
original text , be ready to recite the case or to prepare a
case digest thereof in class.

The discussions outlined in this study guide have been


collectively lifted from the references listed in your course
syllabus.

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