GROUNDS FOR DENIAL OF LEGAL SEPARATION

(Art. 56)

No double jeopardy - the defense of bigamy for which

he was convicted and that of concubinage for which he
stood trial in the court are two distinct offenses in the law

1.CONDONATION

BIGAMY: celebration of second marriage while the first is

still existing; offense against civil status which may be
prosecuted at the instance of the state

What if both of us were both unfaithful? The right to support

remains.
Almacen v. Baltazar 103 Phil. 1147
It has been held that the act of giving money to an
erring wife and the fact that no action was taken
against her in the courts of justice are sufficient to
establish forgiveness amounting to condonation, for
condonation is the forgiveness of one othe married
parties of an offense which he knows the other has
committed against the other. Pardon or condonation
does not require sexual intercourse, and it may be
express or implied

CONCUBINAGE: mere cohabitation by the husband with

a woman who is not his wife; offense against chastity and
may be prosecuted only at the instance of the offended
party
Upon the other hand, the accused should have been
acquitted of the crime of concubinage
the document executed by and between the accused
and the complainant in which they agreed , while
illegal for the purpose for which it was executed ,
constitutes nevertheless a valid consent to the act of
concubinage within the meaning of Art. 344 of the
RPC
by such agreement, each party clearly intended to
forego the illicitacts of the other

2.CONSENT
People v. Rodolfo A. Schneckenburger, G.R. No. L48183 November 10, 1941
The Supreme Court held that the accused, who
secured a foreign divorce and later remarried in the
Philippines (believing that the foreign divorce was
valid), is liable for bigamy.
FACTS:
May 15, 1926: accused Rodolfo married the complainant
Elena Ramirez Cartagena
After 7 years (due to incompatibility of characters) they
agreed to live separately from each other
May 25, 1935: they executed document agreement,
which states that: Que ambos comparecientes convienen en vivir separados el uno del otro por el resto
de su vida y se comprometen, y obligan reciprocamente
a no molastarse ni intervenir ni mezclarse bajo ningun
concepto en la vida publica o privada de los mismos,
entre si, quendado cada uno de los otorgantes en
completa libertad de accion en calquier acto y todos
concepto.
June 15, 1935: accused w/o leaving the Philippines
secured a divorce decree from civil court of Juarez, Bravos
District of Chihuahua Mexico
May 11, 1936: he contracted another marriage with coaccused Julia Medel before the justice of the peace of
Malabon
Because of the nullity of the divorce decree, complainant
herein instituted two actions against the accused, one for
bigamy and another for concubinage
Charge for bigamy culminated in the conviction of
accused;
Meanwhile, before the trial for the charge of concubinage
commenced,accused interposed the plea of double
jeopardy and the case was initiallydismissed; upon
appeal, the CA held the dismissal before trial to
bepremature and without deciding the question of double
jeopardy,remanded the case to the trial court for trial on
the merits
TC: accused was convicted of concubinage through
reckless imprudence

Previously, the court held that the consent which bars the
offended party from instituting a criminal prosecution in
cases of adultery, concubinage, seduction, abduction, rape
and acts of lasciviousness isthat which has been given
expressly or impliedly after the crime hasbeen committed.
However, in this case, the Court sees this to be a narrow
view.
As the term "pardon" unquestionably refers to the offense
after its commission, "consent" must have been intended
agreeably with its ordinary usage, to refer to the offense
prior to its commission. No logical difference can indeed be
perceived between prior and subsequent consent, for in
both instances as the offended party has chosen to
compromise with his/her dishonor, he/she becomes
unworthy to come to court and invoke its aid in the
vindication of the wrong
Prior consent is as effective as subsequent consent to bar
the offended party from prosecuting the offense
An agreement of the tenor entered into between the parties
herein, operates, within the plain language and manifest
policy of the law, to bar the offended party from prosecuting
the offense

Article 344 of the RPC provides:

The offended party cannot institute criminal prosecution
without including both the guilty parties, if they are both
alive, nor, in any case, if he shall have consented or
pardoned the offenders.

58 Phil. 621
G.R. No. 38672, October 27, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF
AND APPELLEE, VS. ALFONSO GUINUCUD AND ROSARIO
TAGAYUN, DEFENDANTS AND APPELLANTS.

ISSUE:
Whether the accused should be acquitted of concubinage in
view of the agreement executed by Rodolfo and Elena upon
their separation

DECISION
BUTTE, J.:
This is an appeal from a decision of the Court of First Instance
of Isabela, convicting the appellants of the crime of adultery.
The prosecution was instituted by the complaint of the
husband of Rosario Tagayun, named Ramon Palattao.

HELD:
Yes. The agreement constituted a consent given by Elena
to Rodolfo, hence, Rodolfo should be acquitted. Judgment is
reversed.

Upon arraignment, the accused pleaded not guilty but on the

hearing, admitted the facts alleged in the information but
presented evidence to prove that Ramon Palattao consented

to the adultery, which fact, if established, bars any

prosecution under article 344 of the Revised Penal Code. The
pertinent paragraphs of said article are as follows:
"Art. 344. Prosecution of the crimes of adultery, concubinage,
seduction, abduction, rape and acts of lasciviousness.The
crimes of adultery and concubinage shall not be prosecuted
except upon a complaint filed by the offended spouse.
"The offended party cannot institute criminal prosecution
without including both the guilty parties, if they are both alive,
nor, in any case, if he shall have consented or pardoned the
offenders."
It appears from the evidence in this case that the husband,
Ramon Palattao, in April 1930, abandoned and deserted his
wife, Rosario Tagayun, then aged 21, and their child. After that
abandonment, Rosario lived with her mother but made
repeated efforts to win back her husband. She went to the
justice of the peace of San Pablo, Mariano Castaneda, who
testified that he called Ramon and endeavored to persuade
Ramon to take his wife back, but Ramon refused. Thereafter,
at the request of the mother of Rosario, the barrio lieutenant,
Mariano Tumaliuan, took Rosario and her child to Ramon's
house but she was refused admission by the said Ramon.
Thereafter, on July 3, 1930, the husband, Ramon, induced his
wife, Rosario, to sign the document which appears in the
record as Exhibit 1. He brought the document in duplicate to
the house of Rosario's mother where both of them signed both
copies, he keeping the original and leaving her the carbon
copy. Exhibit 1 is as follows:
"COUPLE'S AGREEMENT
"We, Ramon Palattao and Rosario Tagayun, man and wife,
enter into the following agreement:
"That in view of the fact that, I, Ramon Palattao, the man,
cannot stay and live with the parent of Rosario Tagayun in
barrio Lattu; and that in view of the fact that I, Rosario
Tagayun, the woman, cannot live with the parent of Ramon
Palattao in barrio Auitan;
"We mutually agree by this present to separate from each
other and that Ramon Palattao can and I gave him the
privilege to love or marry another woman; so also Rosario
Tagayun can accept or be married to another man;
"We also agree that, as to the baby Leslie who is our child, it is
our right to have him by turn and we are bound to support
him jointly;
"Finally we state also that each of us has to find his or her
means of existence and neither of us has the right to bother
the other as to his or her livelihood;
"In witness whereof we sign at barrio Lattu in the municipality
of San Pablo, province of Isabela, this 3rd day of July, 1930.
(Sgd.)
TAGAYUN

"ROSARIO

(Sgd.) RAMON PALATTAO"

At the time said Exhibit 1 was signed, Rosario and her child
were living with Rosario's mother and there is no evidence of
any misconduct on her part at that time or that she
contemplated any illicit relations with any other man. On the
other hand, we are convinced from the conduct of the
husband Ramon that he solicited the signature of Rosario to
said agreement in his own interest and because he desired to
have "the privilege to love or to marry another woman". At
the trial of this case, he denied that the signature in Exhibit 1
was his signature. This was a palpable falsehood as a
comparison with his signatures on other documents in the
files plainly shows. He even had the effrontery to deny his
signature to a motion for continuance which he filed in the
justice of the peace court.
He admitted on cross-examination that, for more than a year
before he filed the complaint in this case, he knew that his
wife Rosario and her coaccused Alfonso were living together in
the same house. During all that time he took no action

whatever to vindicate the honor of his name or to resent the

open offense to the integrity of his home, doubtless, because
he felt bound by the alleged agreement to give his consent to
Rosario's conduct or because he expected her to reciprocate.
As this court stated in the case of People vs. Sensano and
Ramos (p. 73, ante), he was "assuming a mere pose when he
signed the complaint as the 'offended' spouse," and his
conduct as shown by the evidence in this case warrants the
inference that he consented to, and acquiesced in, the
adulterous relations existing between the accused, and he is,
therefore, not authorized by law to institute this criminal
proceeding.
The agreement above referred to (Exhibit 1) is void in
law. (Cf. People vs. Tolentino, G. R. No. 34145, promulgated
October 22, 1931.)
Whilst the agreement, Exhibit 1, is void in law, it is
nevertheless competent evidence to explain the husband's
inaction after he knew of his wife's living with the coaccused
and to show that he acquiesced in her conduct. The
expression "if he shall have consented" in article 344 of the
Revised Penal Code, which bars the "offended" husband from
instituting a prosecution, has no reference to any consent or
agreement prior to the commission of the offense but relates
to an express or implied acquiescence subsequent to the
offense. This consent or acquiescence need not be express
but may be inferred from the conduct or the long continued
inaction of the husband after learning of the offense. The
husband who is truly "offended", within the meaning of the
statute, will not sit passively by and allow his name and the
honor of his family to be flagrantly sullied by the notorious
adultery of his wife. Apart from that, the fact that he
abandoned and deserted his wife and child, in spite of all her
efforts to maintain their home intact, shows a callous
indifference to every moral duty imposed upon him as her
husband and the father of their child. In this case, the very
thing happened which he might have foreseen and probably
did foresee when he abandoned his wife and deceived her
into believing that she was free when she signed the said
agreement a year and a half before the offense was
committed. His consent to the offense before it was
committed was void but his tolerance of and acquiescence in
the offense after it was committed demonstrate that it is a
hypocritical pretense for him now to appear in court as the
"offended party" and bar his right to prosecute his wife.
Very apt in this connection are the following paragraphs in
Groizard's commentaries on similar provisions in the Codigo
Penal of Spain:
"A su vez, transigir un marido con su deshonor, consentir el
adulterio y luego ir a los tribunales querellandose de la mujer
y de su complice, es ser dos veces indigno: la primera, al
conocer y no vindicar la ofensa recibida, y la segunda,
haciendola publica, con dao de toda la familia, despues de
haber demostrado que personalmente le afectaba en poco."
(Page 48, Groizard's Codigo Penal, Vol. 5.)
"A las limitaciones de que acabamos de hablar, nosotros
aadiriamos otra que encontramos establecida en algunos
codigos que en las concordancias figuran. Fijariamos un plazo,
mas o menos largo, para la presentacion de la querella,
pasado el cual, negariamos al marido el derecho de
producirla. El marido que tiene conocimiento de la violacion
de la fe conyugal, y deja pasar cuatro o seis meses sin acudir
a los tribunales demandando reparacion de las injurias, debe
suponerse que tacitamente las ha perdonado. Espacio ha
tenido suficiente, cuando la herida chorreaba sangre, para
ejercer el derecho que la ley le daba; si no lo hizo en un
termino prudencial, no es justo que indefinidamente tenga a
la mujer bajo la amenaza de un castigo vergonzoso que
cohiba
perpetuamente
su
espiritu,
impidiendo
su
arrepentimiento y dificultando la conciliacion conyugal, y con
ella la paz de la familia." (Page 49, Groizard's Codigo Penal,
Vol. 5.)

The judgment below is reversed with costs de oficio.

Street, Malcolm, Abad Santos, and Vickers, JJ., concur.

PEOPLE VS. SENSANO AND RAMOS 58 PHIL 73

FACTS:
Ursula Sensano and Mariano Ventura were married and had a
child whom the latter allegedly abandoned when he went and
stayed in Cagayan for three years without letters or financial
support to the former who worked hard for herself and her son
until she met the accused Marcelo Ramos who later took care
of them.
Ventura charged Sensano and Ramos for adultery, found by
the court guilty of the crime charged and served their
sentence.
Sensano after serving her sentenced and leaving her
paramour made steps to reconcile with and go back to her
husband but to no avail - She and her child were abandoned
for the second time. Thus, they went back to her co-accused
Ramos.
Despite the knowledge that she resumed living with her
codefendant, her husband did nothing to assert his right as
her spouse. Instead, he went abroad for seven years and
presumably had completely abandoned them..
When Ventura returned home, he charged Sensano of adultery
for the second time in order to obtain divorce under Act No.
2710.
ISSUE: Whether or not Ramos can file adultery against his
spouse for the second time being the offended party.
HELD: No. The Court concluded that the evidence in this case
as well as the conduct of Ramos showed that he consented to
the adulterous relations existing between the accused and
former co-defendant. He is therefore under the law not
authorized to institute the criminal proceeding.

1.In 1983, Jose De Ocampo married Serafine Florenciano.

and they had children.
2. Jose soon discovered in the year 1951 that Serafina
actually maintained illicit relations with a man named Jose
Arcalas. He decided to have his wife study beauty culture in
Manila.
3. He found out yet again that his wife had illicit
relationships with another man. After she finished her
beauty school they decided to live separately.
4. Jose later surprised his spouse in the act of committing
infidelity with a man named Nelson Orzame.
5. he decided to file for legal separation, which Serafina
agreed to for as long as she is not charged with adultery.
Issue: Whether or not the confession of the wife was fatal
to their prayer for legal separation
Held: No , it was not fatal because it was not they type of
confession prohibited by Article 48 of the Family Code. In
the case, she admitted to committing adultery to the fiscal
who was investigating the case. It was done in the court,
which is the confession that is not allowed. Also, the
judgement was based not based solely on the confession,
but more on the other evidences presented to prove that
the wife committed adultery. The point of the prohibition is
to prevent spouses from abusing the provisions on legal
separation, if it was seen, like in the case, that there was an
actual ground for legal separation, the courts cannot deny
them their right just because of the confession which was
not the one prohibited by the law.

6.PRESCRIPTION

Article 344 of the Revised Penal Code, paragraphs 1 and 2,

are as follows:
Prosecution of the crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness. The crimes of
adultery and concubinage shall not be prosecuted except
upon a complaint filed by the offended spouse. The offended
party cannot institute criminal prosecution without including
both the guilty parties, if they are both alive, nor, in any case,
if he shall have consented or pardoned the offenders.
The court, in reversing the decision of the court aquo found
the argument of the Solicitor General that his seven years of
acquiescence in the adultery of his wife is due to his absence
in the country which made him impossible to take any action
against the accused, to be unmeritorious.

PROCEDURE
Tuason vs. CA, 256 SCRA 158

3.CONNIVANCE

4.RECRIMINATION OR EQUAL GUILT

ONG vs. ONG, G.R. No. 153206, October 23, 2006,
505 SCRA 76
(SEE DIGEST FROM ATENEO 2007 BAR REVIEWER)

5.COLLUSION
Ocampo vs. Florenciano , supra
Facts:

SOMOSA-RAMOS vs. VAMENTA, JR.

GR No. L-34132, July 29, 1972 (46 SCRA 110, 112, 113)
FACTS:
Petitioner Lucy Somosa- Ramos, filed an action for legal
separation based on the ground of concubinage on the part of
respondent Clemen Ramos. She also sought for the issuance
of a writ of preliminary mandatory injunction for the return to
her of her paraphernal and exclusive property. The hearing on
the motion was opposed by respondent Ramos alleging that if
the motion for preliminary injunction were heard, the prospect
of reconciliation of the spouses would become even more dim.
Respondent judge Vamonte thereafter granted the motion of
respondent Ramos to suspend the hearing of the petition for a
writ of mandatory preliminary injunction.
Hence, this petition for certiorari.

ISSUE: Whether or not Article 103 of the Civil Code

prohibiting the hearing of an action for legal separation before
the lapse of six months from the filing of the petition, would
likewise preclude the court from acting on a motion for
preliminary mandatory injunction applied for as an ancillary
remedy to such a suit
HELD: NO.
The court where the action is pending according to Article 103
is to remain passive. It must let the parties alone in the
meanwhile. It is precluded from hearing the suit. There is then
some plausibility for the view of the lower court that an
ancillary motion such as one for preliminary mandatory
injunction is not to be acted on. If it were otherwise, there
would be a failure to abide by the literal language of such
codal provision. . That the law, however, remains cognizant of
the need in certain cases for judicial power to assert itself is
discernible from what is set forth in the following article. It
reads thus: "After the filing of the petition for legal separation,
the spouse shall be entitled to live separately from each other
and manage their respective property. The husband shall
continue to manage the conjugal partnership property but if
the court deems it proper, it may appoint another to manage
said property, in which case the administrator shall have the
same rights and duties as a guardian and shall not be allowed
to dispose of the income or of the capital except in
accordance with the orders of the court."
There would appear to be then a recognition that the question
of management of their respective property need not be left
unresolved even during such six-month period. An
administrator may even be appointed for the management of
the property of the conjugal partnership. The absolute
limitation from which the court suffers under the preceding
article is thereby eased. The parties may in the meanwhile be
heard. There is justification then for the petitioner's insistence
that her motion for preliminary mandatory injunction should
not be ignored by the lower court. There is all the more reason
for this response from respondent Judge, considering that the
husband whom she accused of concubinage and an attempt
against her life would in the meanwhile continue in the
management of what she claimed to be her paraphernal
property, an assertion that was not specifically denied by him.

Pacete vs. Carriaga, 46 SCAD 673, 231 SCRA 321

FACTS:
Concepcion Alanis filed a complaint on October 1979, for the
Declaration of Nullity of Marriage between her erstwhile
husband Enrico Pacete and one Clarita de la Concepcion, as
well as for legal separation between her and Pacete,
accounting and separation of property. She averred in her
complaint that she was married to Pacete on April 1938 and
they had a child named Consuelo; that Pacete subsequently
contracted a second marriage with Clarita de la Concepcion
and that she learned of such marriage only on August 1979.
Reconciliation between her and Pacete was impossible since
he evidently preferred to continue living with Clarita.
The defendants were each served with summons. They filed
an extension within which to file an answer, which the court
partly granted. Due to unwanted misunderstanding,
particularly in communication, the defendants failed to file an
answer on the date set by the court. Thereafter, the plaintiff
filed a motion to declare the defendants in default, which the
court forthwith granted. The court received plaintiffs
evidence during the hearings held on February 15, 20, 21, and
22, 1980. After trial, the court rendered a decision in favor of
the plaintiff on March 17,1980.
ISSUE: Whether or not the RTC gravely abused its discretion
in denying petitioners motion for extension of time to file
their answer, in declaring petitioners in default and in
rendering its decision on March 17, 1980 which decreed the

legal separation of Pacete and Alanis and held to be null and

void the marriage of Pacete to Clarita.
HELD:
The Civil Code provides that no decree of legal separation
shall be promulgated upon a stipulation of facts or by
confession of judgment. In case of non-appearance of the
defendant, the court shall order the prosecuting attorney to
inquire whether or not collusion between parties exists. If
there is no collusion, the prosecuting attorney shall intervene
for the State in order to take care that the evidence for the
plaintiff is not fabricated.
The above stated provision calling for the intervention of the
state attorneys in case of uncontested proceedings for legal
separation (and of annulment of marriages, under Article 88)
is to emphasize that marriage is more than a mere contract.
Article 103 of the Civil Code, now Article 58 of the Family
Code, further mandates that an action for legal separation
must in no case be tried before six months shall have
elapsed since the filing of the petition, obviously in order to
provide the parties a cooling-off period. In this interim, the
court should take steps toward getting the parties to
reconcile.
The significance of the above substantive provisions of the
law is further or underscored by the inclusion of a provision in
Rule 18 of the Rules of Court which provides that no defaults
in actions for annulments of marriage or for legal separation.
Therefore, if the defendant in an action for annulment of
marriage or for legal separation fails to answer, the court shall
order the prosecuting attorney to investigate whether or not a
collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to it that
the evidence submitted is not fabricated.

Gandionco vs. Peafrada, supra

Ocampo vs. Florenciano, supra

Arroyo vs. Vasquez, 42 Phil. 54

FACTS:
Plaintiff Mariano and defendant Dolores were married in 1910,
and lived in Iloilo City. They lived together with a few short
intervals of separation. On July 4, 1920, defendant Dolores
went away from their common home and decided to live
separately from plaintiff. She claimed that she was compelled
to leave on the basis of cruel treatment on the part of her
husband. She in turn prayed for a decree of separation, a
liquidation of their conjugal partnership, and an allowance for
counsel fees and permanent separate maintenance.
CFI ruled in favor of the defendant and she was granted
alimony amounting to P400, also other fees
Plaintiff then asked for a restitution of conjugal rights, and a
permanent mandatory injunction requiring the defendant to
return to the conjugal home and live with him as his wife.
ISSUES:
1. WON defendant had sufficient cause for leaving the
conjugal home
2. WON plaintiff may be granted the restitution of conjugal
rights or absolute order or permanent mandatory injunction
HELD:
1. The wife had sufficient cause for leaving the conjugal home.
Cruelty done by plaintiff to defendant was greatly
exaggerated. The wife was inflicted with a disposition of
jealousy towards her husband in an aggravated degree. No
sufficient cause was present.

Courts should move with caution in enforcing the duty to

provide for the separate maintenance of the wife since this
recognizes the de facto separation of the two parties.
Continued cohabitation of the pair must be seen as
impossible, and separation must be necessary, stemming
from the fault of the husband. She is under obligation to
return to the domicile.
When people understand that they must live togetherthey
learn to soften by mutual accommodation that yoke which
they know they cannot shake off;
they become good
husbands and wivesnecessity is a powerful master in
teaching the duties which it imposes (Evans v. Evans)
2. On granting the restitution of conjugal rights. It is not within
the province of the courts to compel one of the spouses to
cohabit with, and render conjugal rights to, the other. In the
case of property rights, such an action may be maintained.
Said order, at best, would have no other purpose than to
compel the spouses to live together. Other countries, such as
England and Scotland have done this with much criticism.
Plaintiff is entitled to a judicial declaration that the defendant
absented herself without sufficient cause and it is her duty to
return. She is also not entitled to support.

MANAGEMENT OF PROPERTIES DURING SUIT

Sabaones vs. CA, G.R. No. 106169, Feb. 14, 1994, 48
SCAD 286

DEATH TERMINATES LEGAL SEPARATION

Lapuz vs. Eufemio, supra

EFFECTS OF A DECREE OF LEGAL SEPARATION

Macadangdang vs. CA, 108 SCRA 314