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LEGAL SEPARATION

LEGAL SEPARATION. UNDER THE FAMILY CODE. Grounds for Legal Separation (Art. 55). (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;

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LEGAL SEPARATION

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  1. LEGAL SEPARATION UNDER THE FAMILY CODE

  2. Grounds for Legal Separation (Art. 55) • (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;

  3. (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.

  4. Physical Violence under R.A. No. 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.

  5. Physical Violence under R.A. No. 9262 • Sec. 3 (a) "Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.

  6. (8) Sexual Infidelity or perversion • GOTIA v. CAMPOS-RUEDA (1916) – wife was asked to perform unchaste & lascivious acts on genitals of husband • PEOPLE v. ZAPANTA (1951) – wife pled guilty to adultery; she was again charged for adultery; court said that each act is adultery • GANDIONCO v. PENARANDA (1987) – legal separation (civil case) can proceed independently of concubinage (criminal case) • KALAW v. FERNANDEZ (2011) – there is ground for legal separation (infidelity) but not for psychological incapacity

  7. Who can ask for legal separation • Under Article 55, the innocent spouse.

  8. When may petition be filed • Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102)

  9. When may petition be filed • LAPUZ v. EUFEMIO (1972) – action for legal separation is purely personal; death of one party causes the death of the action itself • MATUBIS v. PRAXEDES (1960) – husband cohabited with another woman and wife came to know about this; she filed legal separation case 15 months later, case was filed out of time.

  10. Court procedure in legal separation • 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) • 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)

  11. Cases: • ARANETA v. CONCEPCION (1956) – determination of custody and support pendente lite during the six-month cooling off period is allowed. • OCAMPO v. FLORENCIANO (1960) – husband filed case for legal separation on ground of wife’s adultery; wife admitted to fiscal during collusion hearing that she is indeed guilty of adultery; not indication of collusion or confession of judgment • LAPUZ v. EUFEMIO (1972) – husband died before decision on legal separation was resolved, right to dissolution of the conjugal partnership of gains also extinguished (property rights are mere effects of the decree of separation

  12. SAMOSA v. VAMENTA (1972) – wife filed for legal separation on ground of attempt on her life and for concubinage; court may appoint administrator for her paraphernal property even during the six-month cooling off period • PACETE v. CARIAGA (1994) – respondent failed to file an Answer and was declared in default; case should have been referred to the fiscal for determination of collusion; cannot be based on stipulation of facts or confession of judgment (Art. 60).

  13. Effect of pendency of the petition • DE LA VINA v. VILLAREAL (1920) – an action for divorce brought by the wife against the husband, in which the partition of the conjugal property is also prayed for, the wife may obtain a preliminary injunction against the husband, prohibiting him from alienating or encumbering any part of the conjugal property during pendency of the action. • SABALONES v. CA (1994) – in legal separation cases, while the court has not appointed an administrator of the entire conjugal assets, court is justified in allowing wife to continue her administration

  14. Support & Custody pendente lite • YANGCO v. RHODE (1902) – where the answer to a complaint alleging marriage and praying for divorce denied the fact of marriage, the court exceeds its jurisdiction in granting alimony. The right of the wife to support depends upon her status as such and where the existence of the status is put in issue by the pleading it cannot be presumed to exist for the purpose of granting alimony.

  15. Support & Custody pendente lite • ARANETA v. CONCEPCION (1956) – 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. That is, evidence not affecting the cause of the separation like the actual custody of the 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.

  16. Support & Custody pendente lite • RAMOS v. VAMENTA (1972) – The husband, accused of concubinage and attempt against the life of the wife would continue in the management of her paraphernal property if the judge does not allow the preliminary mandatory injunction during the cooling off period. • LERMA v. CA (1974) – Husband filed adultery case. Wife countered by filing legal separation, custody of children and support pendente lite. A petition in bad faith, such as that filed by one who is 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.

  17. Defenses in actions for legal separation • 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;

  18. Defenses in action 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. (100a)

  19. (a) Consent • MATUBIS v. PRAXEDES (1960) – parties executed an agreement that they will not prosecute for adultery or concubinage; husband cohabited with another woman and wife came to know about this; she filed legal separation. There is condonation and consent in writing (agreement). • PEOPLE v. SANSANO (1933) – Husband filed for divorce but was denied because by his actions he consented to his wife’s adulterous relations.

  20. (b) Condonation • BUGAYONG v. GINEZ (1956) – after learning of wife’s adultery, husband had sexual intercourse with her. Court denied the divorce saying that a single voluntary act of marital intercourse is sufficient to constitute condonation.

  21. (c) Recrimination • BROWN v. YAMBAO (1957) – wife was impregnated by another man. They separated and liquidated conjugal partnership. He filed for legal separation but this was denied because he himself cohabited with another woman and had children with her and because he filed the case 10 years after learning of his wife’s adultery. • ONG ENG KIAM v. ONG (2006) – wife was being maltreated by husband so she filed for legal separation (repeated physical violence and grossly abusive conduct). Husband sought nullification saying wife abandoned her and so she is barred from filing a case for legal separation. Court said that abusive conduct of husband is justifiable cause for abandonment.

  22. (d) Collusion/Mutual Consent • BROWN v. YAMBAO (1957) – wife was impregnated by another man. They separated and liquidated conjugal partnership. He filed for legal separation but this was denied because he himself cohabited with another woman and had children with her and because he filed the case 10 years after learning of his wife’s adultery. • OCAMPO v. FLORENCIANO (1960) – wife had illicit relations with different men. Husband filed for legal separation and she agreed as long as she is not charged with adultery. She did not file an Answer but admitted guilt before the fiscal during collusion hearing. This is not a confession of judgment because it was not given in court. Husband also presented evidence independent of wife’s testimony to prove the adultery, legal separation action will prosper.

  23. Effect of decree of legal separation • Art. 63. The decree of legal separation shall have the following effects: • (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; • (2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2); • (3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and • (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a)

  24. Cases: • MATUTE v. MACADAEG (1956) – husband is legally separated from wife cause of adultery with husband’s brother. Custody of children was granted to husband. Wife brought children to Manila with consent of husband but refused to return them saying they prefer to stay with her. Custody of children is never final and subject to review for the best interest of the children. However, until the decision is modified, the custody is to the father. Besides, wife is not capable of supporting the children.

  25. LAPERAL v. REPUBLIC (1962) – wife who obtained legal separation cannot revert to using her maiden name besides the conjugal partnership had already been dissolved.

  26. Reconciliation • Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. (n) • Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences: • (1) The legal separation proceedings, if still pending, shall thereby be terminated at 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. • The court's order containing the foregoing shall be recorded in the proper civil registries. (108a)

  27. Reconciliation • 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 separated 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 measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties. • The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim. (195a, 108a)

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