Persons and Family Relations/Solis/Legal Separation/Page 1 of 16

VI. LEGAL SEPARATION

LEGAL SEPARATION
Grounds (FC 55)
1. Repeated physical violence against:
-Petitioner or petitioners child
-common children

Defenses (FC 56)

1. Condonation

Filing And Trial Period

FC 57
Within 5 years of occurrence of grounds

2. Consent
2. Physical or moral violence forcing
petitioner to change religious or political
beliefs
3. Involvement or connivance into inducing:
-Petitioner or petitioners child
-common children
Into prostitution.

FC 58
No trial until 6 months after filing
3. Connivance
4. Recrimination
5. Collusion

4. Final Judgment of respondent to a

crime, with a sentence of more than 6
years imprisonment, even if pardoned
5. Drug Addiction or habitual alcoholism
6. Homosexuality or lesbianism
7. Subsequent bigamy by respondent
during the marriage
8. Sexual infidelity or perversion (NB,
under NCC 97 this was one of the two
grounds for separation, phrased as
adultery or concubinage)
9. Abandonment
10. Attempt on a spouses life by the other
(the only other ground also listed in NCC
97)

A. Grounds

6. Prescription

FC 59
Reconciliation will first be attempted
FC 60
No decree will be based on confession of
judgment or stipulation of facts.

Effects
Filing

Decree
FC 63
-Spouses may live
apart
-ACP/CPG is
dissolved in favor
of the innocent
spouse.
-Custody of
children will favor
FC 62:
the innocent
FC 49 applies:
spouse
FC 49:
(exception: FC
The court will decide
213 ALWAYS
on the custody and
gives custody of
support of children,
children below 7 to
taking into account
the mother).
their welfare and, if
-Guilty spouse
over seven, their
cannot inherit
choice or parent.
through intestate
Below 7, they go to
succession.
the mother.
NCC 372
-the wife retains
whatever surname
she used in the
marriage.
Reconciliation
FC 65:
Accomplished through a joint manifestation
signed by both spouses.
FC 66
-Legal separation proceedings will cease,
or if finalized, will be set aside.
FC 67
Former property relations may be revived
-Requires a statement accomplished under
oath and filed in the same court as the
proceedings for separation, indicating:
1. Properties contributed anew
2. Properties to remain separate
3. Names of all known creditors and
amounts owed
FC 61
-Spouses may live
apart.
-Administration of
ACP/CPG may be
given by court to
either spouse or a
third party/guardian.

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Art. 55 (FC):
A petition for legal separation may be filed on any of the following grounds:
Notes from the Books:
Old Civil Code: within 1 year from knowledge and within 5 years from occurrence
Note that the grounds enumerated here are acts against petitioner and petitioners children (common children or
petitioners only). This does not include the child of defendant.
Ground number 9 (attempt on life)- does not require intent to kill (which is part of criminal law)
My notes in class:
This is only separation by bed and board, still married by surname
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a
child of the petitioner;
Notes from the Books:
Violence must be of a serious degree, but does not have to amount to an attempt against the life of the defendant,
which is covered by (9)
Repeated physical violence or the grossly abusive language should be committed only by one spouse and not by both
to each other
My notes in class:
Who are not included? Children of the respondent
Case asked: Munoz v. Del Barrio
What should be the test here? Not frequency, but gravity
(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
Notes from the Books:
Need not be repeated
Single incident would be enough

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Mere arguments to persuade not sufficient

There must be some element of coercion present
My notes in class:
What about political affiliation as this country popularly practices turncoatism? Must be within context of person
pressuring another morally
What if the parties are in connivance? The provision does not apply
(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;
Notes from the Books:
Guilt for corruption must be on only one spouse
If both spouses agree that the wife or a daughter engage in prostitution, neither one should be allowed to obtain legal
separation, on the principle that a person should come to court with clean hands
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
Notes from the Books:
No justification for this ground
Crime may have no bearing at all on the relationship of the spouses; crime for which the defendant was convicted is
immaterial
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
Notes from the Books:
If these grounds existed at the time of marriage, but were concealed, and unknown to the other party, ground for
annulment under Arts. 45 and 46, not here
If party knew of this personal defect at the time of marriage, cannot ask for annulment on ground of estoppel
Can be reasons for actions only when they come to exist after the celebration of the marriage

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My notes:
(5) and (6) can be compared to Art. 46, but Art. 46 is for fraud
Why would the LGBT object to lesbianism/homosexuality as grounds? Because it presumes that homosexual
marriages cannot be happy marriages; that these are acts considered a disease in society
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
Notes from the Books:
Would this include a subsequent marriage even after a declaration of presumptive death of the other spouse? Every
subsequent marriage, where there is a subsisting marriage, should give the other spouse the right to ask for legal
separation
Reason: the spouse who has remarried has cohabited with another person
(8) Sexual infidelity or perversion;
Notes from the Books:
Every act of infidelity by either husband or wife is ground
Under Civil Code, infidelity must constitute adultery on the part of the wife or concubinage on the part of the husband
as defined by the RPC
Concubinage committed in three ways:
o Maintaining a mistress in the conjugal dwelling
o Sexual intercourse with the woman under scandalous circumstances
o Cohabiting with her in any other place
Under FC, intercourse with another person, not the spouse, by the wife or a husband will be a ground for legal
separation, as it constitutes infidelity
Paramour one who loves or is loved illicitly; one taking the place without the legal rights of a husband or wife;
mistress; lover
Civil action for legal separation based on concubinage may proceed ahead of or simultaneously with a criminal action
for concubinage, for the action for legal separation is not to recover civil liability arising from the offense
Sexual perversion, as a ground for legal separation, includes all unusual or abnormal sexual practices which may be
offensive to the feelings or sense of decency of either spouse
There must be element of coercion

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But if act is by free mutual agreement, cannot ask for legal separation
My notes in class:
Why changed from adultery/concubinage? Because these are crimes
(9) Attempt by the respondent against the life of the petitioner; or
Notes from the Books:
Ground number 9 (attempt on life)- does not require intent to kill (which is part of criminal law)
Mere infliction of physical injuries not sufficient
If act against life of spouse is justified, and would not constitute illegal act, not ground
If husband catches wife in act of adultery, and tries to kill her but fails, not guilty; same in self-defense and defense of a
child
(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. (9a)
Notes from the Books:
Intent to abandon may be expressed, or may be inferred from circumstances
Under Art. 101, the spouse without just cause abandons the other or fails to comply with his or her obligations to the
family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority
to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may
impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property
relations.
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.

Art. 97 (CC)
Petition for legal separation may be filed.

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(1) For adultery on the part of the wife and for concubinage on the part of the husband
(2) An attempt by one spouse against the life of the other.
My notes in class:
No longer grounds for legal separation because RPC is sufficient
CASES:

People v. Zapata and Bondoc: Adultery is a crime of result and not tendency. Each act of infidelity by the wife counts
as a SEPARATE OFFENSE of adultery, as defined by the Revised Penal Code. Punish the man who did not know!

Munoz v. Del Barrio: physical violence is not a ground for legal separation BEFORE the enactment of the Family Code
My notes in class:
o Held her hair, twisted her neck
o Used his bare fists
o Had the intent to kill, but intent to kill has not been established clearly and convincingly
o What should be the test here? Not frequency, but gravity.

Gandionco v. Penaranda: Conviction for concubinage is NOT NECESSARY for the filing of the petition for legal
separation.

Lapuz v. Eufemio: death of the petitioner TERMINATES the proceedings for legal separation

Dela Cruz v. Dela Cruz: ABANDONMENT is defined as the LACK OF INTENTION to return to the conjugal home,
without justifiable cause.

Ong Eng Kiam v. Ong: REPEATED PHYSICAL VIOLENCE as well as verbal abuse are valid grounds for legal
separation under the Family Code. Abandonment.

B. Defenses Against Legal Separation

Art. 56 (FC)

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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;
Notes from the Books:
Condonation forgiveness of a marital offense constituting ground for legal separation
May be express or implied; mere offer of reconciliation by the wronged spouse may constitute condonation
Test of implied condonation The intent to pardon, based on knowledge of the offense, must be clear
My notes in class:
Express condonation: I forgive you; Kalimutan na natin ito, uwi na tayo
Implied condonation: Action
o Sexual relations; support even after finding out sexual relations
o But what about exception to sexual relations After she does implied condonation, she realizes No, I cant
save it, you did something wrong to me. Maam thinks this is anti-marriage
(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;
Notes from the Books:
Consent agreement or conformity in advance of the commission of the act which would be a ground for legal
separation
Must be freely given; may be expressed or implied
Consent is unilateral, or an act of only one spouse; connivance implies agreement by both spouses to the ground
Test of Connivance Merely suffering in a single case a wife whom he already suspects of having been guilty of
adultery to avail herself to the full extent of an opportunity to indulge her adulterous disposition, which she has
arranged without his knowledge, does not constitute connivance on the part of the husband

(4) Where both parties have given ground for legal separation;

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Notes from the Books:

Recrimination based on the principle that a person must come to court with clean hands
Does not matter whether committed first offense, or who is the more guilty spouse
My notes in class:
Recrimination
o Maam says: This is too much. What if the ground is not related to marriage?
(5) Where there is collusion between the parties to obtain decree of legal separation; or
Notes from the Books:
Collusion agreement between husband and wife for one of them to commit, or to appear to commit or presented in
court as having committed a matrimonial offense, or to suppress evidence of a valid defense
My notes in class:
Collusion:
o Spouses agree to make it appear that one of them has committed a ground for legal separation;
o To appear to commit as having committed and offense
o Suppress evidence
Why changed from adultery/concubinage? Because these are crimes
(6) Where the action is barred by prescription. (100a)
Notes from the Books:
Legal separation is a personal right and does not survive death
This is true even though the legal separation has been granted but has not become entirely effective at the time of
death of one of the parties

CASES:

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People v. Sansano: telling the guilty spouse "You can see whoever you want," amounts to the CONDONEMENT of the
act.

Ocampo v. Florenciano: admission of the guilty spouse of their acts, by itself, does not amount to COLLUSION

Sargent v. Sargent: active participation of husband in trying to induce wife to commit adultery constitutes
CONNIVANCE.

Brown v. Yambao: inaction of the wife despite the petitioner husband's infidelity constitutes COLLUSION

Willan v. Willan: lack of resistance by husband from wife's physical abuse and forcible sex constitutes
CONDONEMENT.

Bugayong v. Ginez: sex by the couple after the husband's knowledge of the wife's infidelity constitutes
CONDONEMENT

Matubis v. Praxedes: written agreement signed by the couple before a de facto separation attesting to their noninterference in each other's affairs counts as CONSENT to each other's extra-marital affairs.

Prof. Pangalangan:
It is said that there is NO CONDONATION if sex is done as an attempt to save the marriage. Exemption of sex as an act
of condonation results to confusion because anyone can just claim it and real forgiveness cannot be ascertained.
However, what will be wrong there is no exception?
Then aggrieved parties will not be given the chance to save their marriages.

C. When to file/try actions Arts. 57-60

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Art. 57, FC:

An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102)
Notes from the Books:
The law does not encourage legal separation, provides for prescription of action
If plaintiff does not come to know of the ground for legal separation, and five years expire, cannot sure anymore
My notes in class:
Old Civil Code: within 1 year from knowledge and within 5 years from occurrence
Will not apply if against Anti-Violence Against Women and their Children (RA 9262)
RA 9262
o One of the important things here is the trial for application for TPO (temporary protection order) which must
be heard within 24 hours
Art. 58, FC:
An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the
petition. (103)
Notes from the Books:
Intention of provision: to give the spouses a chance to reconcile
After period filed, waiting period of 6 months before case tried
This expedient does not have the effect of overriding the other provisions of the Family Code (e.g. determination of
custody of children, alimony and support pendent lite)
Art. 59, FC:
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)
Notes from the Books:
Duty of Court to try to bring about a reconciliation between spouses
Effort of Court can continue even after 6 months while trial ensues
Court should not exert effort on any party

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Art. 60, FC: 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)
Notes from the Books:
Mere acknowledgment cannot be sufficient basis
There must be other proof to the offense which must be specific as to time, person, and place
However, offense may be proved by circumstantial evidence
Testimony of one spouse cannot be taken in corroboration with testimony of other spouse
Broad enough to authorize prosecuting attorney to oppose application for legal separation if he thinks proof is dubious
or fabricated
CASES:

Contreras v. Macaraig: prescriptive period for filing action of legal separation is computed from the time of the
DEFINITIVE cognizance of the other party's guilty act

My notes in class:
Bugayong v. Ginez
Knowledge
- Letters from sister-in-law
- Kissed
- Here, knowledge not acquired, not admission.

Contreras v. Macaraig
Knowledge
- Husband admitted that he has relations
- Driver reported to wife about husbands infidelity

Prof. Pangalangan
Compare: Bugayong v. Ginez and Contreras v. Macaraig
Time of cognizance of offense:
- Bugayong: when rumors were heard and when letters from sisters-in-law were received
- Macaraig: when husband himself admitted the adulterous relationship
Court is inconsistent. There was condonation in both cases, but Macaraig was ruled over sympathy factors.

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Somosa-Ramos v. Vamenta Jr.: the six-month cool-off period DOES NOT BAR legal actions outside of legal separation

D. Effects of Filing of Petition Arts. 61-62, FC

Art. 61, FC: 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)
My notes in class:
Old Civil Code: within 1 year from knowledge and within 5 years from occurrence
Art. 62, FC: 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)
Notes from the Books:
Effects of Filing Petition
o The spouses can live separately from each other; in other words, the plaintiff can have a separate domicile
of his or her own, independently that of the defendant
o The administration of the common property, whether in ACP or CPG, shall be given by the Court to either of
the spouses or to a third person, as is best for the interests of the community
o In the absence of a written agreement of the spouses, the Court shall provide for the support between the
spouses and the custody and support between the spouses and the custody and support of the common
children, taking into consideration the welfare of the children and their choice of parent
o When the consent of one spouse to any transaction of the other is required by law, judicial authorization
shall be necessary, unless such spouse voluntarily gives such consent
During pendency of action, duty of Court to grant alimony to wife
If a defendant fails to comply with order of court granting alimony pendente lite he must show cause why he should
not be punished for contempt
CASES:

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De La Vina v. Villareal: Spouses entitled to his or her own DOMICILE separate from each other during the pendency

Reyes v. Ines-Luciano: Unemployed spouse is entitled to alimony during the pendency of the action, regardless of
allegations of bad faith

Banez v. Banez : partitioning of the marital properties and custody of the common children are INCIDENTS of the
decree of legal separation and MULTIPLE APPEALS assailing each of the decisions is not allowed

1. DISSOLUTION AND LIQUIDATION OF ACP OF CPG

La Rue v. La Rue: Theory of equitable distribution homemaker services are valid contributions to the conjugal
properties, subject to the following conditions: (1) that it is NOT LIMITED to the possessory interest of a real estate; (2)
that it depends on the QUALITY of the services rendered, whether the wife has been frugal or excessive in her
expenses; (3) the age and health of the wife, as well as the LENGTH of the marriage.

2. CUSTODY
Art. 213, FC: In case of separation of the parents, parental authority shall be exercised by the parent designated
by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit. (n)
Notes from the Books:
Under Art. 62, while action is pending, custody in 2 ways:
o By agreement of spouses
o By court order
Under 213, shall be awarded to innocent spouse, unless directed by court
If both unfit, court may designate some reputable and discreet person or commit to any suitable asylum
In all controversies on custody of minors, the sole and foremost consideration is the physical, educational, social, and
moral welfare of the child, taking into account the respective resources and social and moral considerations of
contending parents
My notes in class:

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Illegitimate children need support; hence, the said support will come from the exclusive properties of the parent
designated by the Court.
Economic Poverty v. Relative Economic Capability the former has no means to support necessities of the child, while
the latter can pay for basic needs of the child
Case: Matute v. Macadaeg
o How do you determine contribution of a homemaker? (How well she cooks? How well does she entertain?)
This is to be determined by Courts
3. OTHER EFFECTS
Art. 372, CC: When legal separation has been granted, the wife shall continue using her name and surname
employed before the legal separation.
Notes from the Books:
Mandatory for wife, even when legal separation has been granted
This is because her marriage status is not affected by the separation, there being no severance of the vinculum
Because only separation by bed and board
CASES:

Matute v. Macadaeg: Children's choice of parent is overruled because the parent is UNABLE TO SUPPORT
HERSELF.

Laperal v. Republic: Legal separation does not dissolve marital bonds, thus the wife must still use her MARRIED
NAME and surname

F. Reconciliation
HOW DONE:
Art. 65, FC: If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them

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shall be filed with the court in the same proceeding for legal separation. (n)
My notes in class:
Marriage settlement is also known as a Pre-Nup
EFFECTS:
Art. 66, FC: 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)
Art. 67, FC: 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)
Notes from the Books:
Reconciliation mutual agreement to live together again as husband and wife
Plaintiff cannot compel defendant to resume conjugal dwelling if the latter refuses

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Under CC, agreement may be in any form, expressed or tacit

Under FC, upon resumption, spouses must make joint manifestation
Upon reconciliation, if no decree of legal separation has been filed, proceedings are terminated
o Spouses resume conjugal life and live together again
If reconciliation takes place after decree, decree set aside, has no effect
If court already decreed dissolution of property the regime of separation of property will thereafter be the system of
property relations of spouses
FC authorizes spouses to agree to revive their former property regime not restrictive and does not limit the spouses
to the regime they had before legal separation
After spouses have reconciled, a new action for legal separation can be based on subsequent or other causes, but not
on the causes already pardoned