COMMENTS and RECOMMENDATION
LEGAL SEPARATION
ARTICLE
Article 55 Family Code
(a) Physical violence or moral
pressure to compel the petitioner to
change religious or political
affiliation;
(b) 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;
(c) Final judgment sentencing the
respondent to imprisonment of
GROUP 3
FRIGINAL, Jehaida
GEMPIS, JR., Luch R.
GERERO, Karen A.
GERONA, Russell I.
GODOY, Ma. Socorro A.
JUNASA, Djoanivie Jomare A.
COMMENT
In most cases decided by the Supreme
Court, grounds (a) and (b) are
commonly found by Psychiatrist/
Psychologist as indicated in their
clinical findings as manifestations of
psychological incapacity which is a
ground for nullity of marriage under
Art 36 of the Family Code. Likewise
grounds (a), (c) (I) and (j) are also
covered as violence under the VAWC
law
RECOMMENDATION
Filing for a legal separation is much the
same as filing for nullity of marriage. It
entails the same expenses, time and effort
but of different results. A party has to
undergo rigid presentation of evidence to
be still remained married with his/her
erring spouse until the end. At any rate,
custody of minor children and liquidation
of conjugal assets and /or absolute
community of property are also discussed
and resolved in petition for nullity of
marriage. In some jurisdictions filing of
petition for legal separation is done through
filling out or checking out of boxes in a
template because it essentially does not
more than six years, even if
pardoned;
(d) Drug addiction or habitual
alcoholism of the respondent;
(e) Lesbianism or homosexuality
of the respondent;
(f) Contracting by the respondent
of a subsequent bigamous
marriage, whether in or outside the
Philippines;
(g) Sexual infidelity or perversion
of the respondent;
(h) Attempt on the life of petitioner
by the respondent; or
(i) Abandonment of petitioner by
respondent without justifiable
cause for more than one year.
delve on the marriage tie but only on the
custody of the minor children and the
liquidation of assets. Upon filing of the
petition, a government counselor
specifically appointed to deal on cases of
legal separation would only have to make a
conference with the couple and discussed
those matter. Parties will be saved with
judicial litigation which sometimes take
long process. It is thus recommended that
petition for LEGAL SEPARATION be
removed from judicial process and that it be
considered as an administrative matter
which can be resolved through
administrative proceedings by a competent
administrative agency/board created
specifically by law to handle cases of this
nature. The filing party only has to list the
grounds (same as enumerated under Art 55
of the Family Code), the names of their
minor children, assets/property if any of the
spouses, for consideration and evaluation
of the agency or board.
A. ART 55 GROUNDS
(a) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(b) 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;
(c) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(d) Drug addiction or habitual alcoholism of the respondent;
(e) Lesbianism or homosexuality of the respondent;
(f) Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the Philippines;
(g) Sexual infidelity or perversion of the respondent;
(h) Attempt on the life of petitioner by the respondent; or
(i) Abandonment of petitioner by respondent without justifiable cause for more than one year.c

B. COMMENT:
In most cases decided by the Supreme Court, grounds (a) and (b) are commonly found by Psychiatrist/ Psychologist as
indicated in their clinical findings as manifestations of psychological incapacity which is a ground for nullity of marriage
under Art 36 of the Family Code. Likewise grounds (a), (c) (I) and (j) are also covered as violence under the VAWC law
C.RECOMMENDATION
Filing for a legal separation is much the same as filing for nullity of marriage. It entails the same expenses, time and
effort but of different results. A party has to undergo rigid presentation of evidence to be still remained married with his/her
erring spouse until the end. At any rate, custody of minor children and liquidation of conjugal assets and /or absolute
community of property are also discussed and resolved in petition for nullity of marriage. In some jurisdictions filing of
petition for legal separation is done through filling out or checking out of boxes in a template because it essentially does not
delve on the marriage tie but only on the custody of the minor children and the liquidation of assets. Upon filing of the petition,
a government counselor specifically appointed to deal on cases of legal separation would only have to make a conference
with the couple and discussed those matters. Parties will be saved with judicial litigation which sometimes take long process.
It is thus recommended that petition for LEGAL SEPARATION be removed from judicial process and that it be considered as
an administrative matter which can be resolved through administrative proceedings by a competent administrative
agency/board created specifically by law to handle cases of this nature. The filing party only has to list the grounds (same as
enumerated under Art 55 of the Family Code), the names of their minor children, assets/property if any of the spouses, for
consideration and evaluation of the agency or board.

ARTICLE COMMENTS RECOMMENDATION

Article 63. The decree of legal Item No. 2 of Article 63 speaks of It is respectfully recommended that not
separation shall have the following forfeiture of the share of offending only the share of the offending spouse in
effects: spouse in the “net profits” earned by the the net profits is forfeited but also his entire
absolute community or the conjugal share in the community property.
1) The spouses shall be entitled to partnership.
live separately from each other, Thus, Item No. 2 of Article 63 should be
but the marriage bond shall not be Under Article 102, the net profits shall amended as follows:
severed; be the increase in value between the
market value of the community property 2) The absolute community or the
2) The absolute community or the at the time of celebration of the marriage conjugal partnership shall be
conjugal partnership shall be and the market value at the time of its dissolved and liquidated but the share
dissolved and liquidated but the dissolution. of the offending spouse shall be
offending spouse shall have no forfeited, in accordance with the
right to any share of the net profits The “net profits” subject of forfeiture provisions of Article 43(2);
earned by the absolute was mentioned in Article 102 in
community or the conjugal connection with the dissolution of It is fervently hope that, with the
partnership, which shall be absolute community regime. Whereas, recommendation, any spouse would think
forfeited, in accordance with the upon dissolution of the conjugal twice before committing any of the grounds
provisions of Article 43(2); partnership regime provided in Article for legal separation as enumerated under
129, there was no mention of “net Article 55 of the Family Code.
 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 in the will of the The difference in the treatment of net
innocent spouse shall be revoked profits under the absolute community
by operation of law.
1
Article 91, Family Code.
profits” but only profits, which is the net
remainder of the conjugal partnership
properties. This is computed after the
required reimbursements to either
spouse is made and after debts and
obligations of the conjugal partnership
are paid. Thereafter, the profits shall be
divided equally between husband and
wife.
and conjugal partnership of gains is
understandable. This is because under
the absolute community regime, unless
otherwise provided in the Family Code
or in the marriage settlements, all the
properties owned by the spouses at the
time of celebration of marriage or
acquired thereafter are considered
community property.1 On the other
hand, under the conjugal partnership of
gains, only those properties acquired
during the marriage and fruits and
income from their separate properties
 are presumed conjugal properties unless
the contrary is proved.2

It appears from the foregoing that the

“net profits” being referred to in Article
63, which is subject to forfeiture, are
only those properties brought into the
marriage and acquired during the
marriage. This means that, in the case
of absolute community regime, the term
“net profits” do not include the
properties that are already owned by the
spouses prior to their marriage. It is
only the difference in market value on
the time of celebration of marriage and
market value on the time of dissolution.
It is submitted that the properties
acquired during the marriage are
included in the term “net profits.”

In the case of conjugal partnership of

gains, properties of the spouses prior to
their marriage are considered separate
properties and are not included in the
regime. Only the properties acquired by
the spouses during their marriage and

2
Article 116, ibid.
 the fruits and income derived and
earned from their separate properties are
considered part of the conjugal
partnership of gains.3

In view thereof, it would not be much of

a punishment to the offending spouse if
only his/her share in the “net profits” is
forfeited. The grounds for legal
separation, as provided under Article
55, are not mere trivial matters but these
are matters worthy of great concern
which could tremendously affect the
physical, emotional, or mental well-
being of the aggrieved spouse.

Moreover, in line with the state policy

of protecting the sanctity of marriage as
an inviolable social institution, it would
be in keeping of this policy that the
offending spouse, who have done untold
miseries to the aggrieved spouse, should
suffer the consequences of his/her acts
which are considered grounds for legal
separation. Thus, it is not only the share
of the offending spouse in the net profits

3
Article 106, ibid.
 that should be forfeited but also his
entire share in the community property.

Republic Act No. 8552, otherwise In adoption, the paramount To include in the provisions of R.A. No.
known as the “Domestic Adoption consideration is the general welfare and 8552 the following:
Act of 1998” best interest of the child.
If the adopter-father, who is already a
Under Section 14 of R.A. No. 8552, the widower, will adopt his illegitimate child,
adoptee shall be registered with the the adoptee will use as his/her surname the
surname of the adopter. However, the surname of his adopter-father and will use
use of middle name is not provided. as his/her middle name the surname of
his/her biological mother.
In special cases wherein the adopter-
father, who is already a widower, would
like to adopt his illegitimate child, the
latter should be allowed to use as middle
name the surname of his/her biological
mother.

Allowing in this situation the use of the

surname of his/her biological mother as
the middle name of the adopted child
would remove the stigma of illegitimacy
on the part of the adopted child and also,
he/she will be able to maintain her
maternal lineage.

ARTICLE
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.
After all, there is already Republic Act
No. 9255, otherwise known as an “Act
Allowing Illegitimate Children To Use
The Surname Of Their Father."
COMMENT
These provisions of the Family Code
only apply to reconciliation of spouses
after the commencement of proceedings
for legal separation or even after the
final decree of legal separation has been
rendered. It does not apply to couples,
where nullity or annulment of marriage
proceedings had been commenced,
although even in such cases, the
possibility of reconciliation or
withdrawal of the proceedings exist.
Even the prospect of remarriage or
entering into a non-defective marriage
the second time around is not a remote
possibility.
RECOMMENDATION
It is recommended that the
provisions on reconciliation be made
applicable to proceedings on nullity
of void marriages or annulment of
voidable marriages in at least two (2)
situations:
(a.) In cases of nullity of marriage on
grounds of psychological incapacity
and the parties reconcile while the
proceedings are still pending.
(b.) In all cases of nullity of void
marriages or annulment of voidable
marriages, after the final decree had
been rendered, and the parties
contracted thereafter a valid
remarriage.
 The parties will be given the duty to
file the corresponding joint
Art. 66. The reconciliation referred manifestation of the remarriage
to in the preceding Articles shall under oath duly signed by them to be
have the following consequences: filed with the court in the same
proceeding, with the same legal
(1) The legal separation proceedings, effects as herein provided.
if still pending, shall thereby be The provision of Art. 66 (1) appears to
terminated at whatever stage; and be unnecessary and superfluous. If the Omit Art. 66 (1).
proceedings are terminated, or
(2) The final decree of legal otherwise dismissed before final Instead, reconciliation as referred to
separation shall be set aside, but the judgment on whatever grounds at in these provisions should pertain to
separation of property and any whatever stage, regardless of whether reconciliation:
forfeiture of the share of the guilty the parties have reconciled or not, it
spouse already effected shall subsist, shall have no legal effect whatsoever on (a.) After a final decree of legal
unless the spouses agree to revive the marriage and the property relations separation.
their former property regime. of the spouses.
(b.) After a final decree of nullity of
The court's order containing the void marriages or annulment of
foregoing shall be recorded in the voidable marriages and the parties
proper civil registries. contracted thereafter, with all the
necessary, essential and formal
requisites, a valid remarriage.

In cases of a final decree of legal

separation, 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.

In cases of re-marriage, the parties

would revive the former property
Art. 67. The agreement to revive the regime, unless they enter into a
former property regime referred to in different marriage settlement prior to
the preceding Article shall be the remarriage.
executed under oath and shall
specify:
(1) The properties to be contributed
anew to the restored regime;
(2) Those to be retained as separated Under Art. 63 (2), upon finality of the
properties of each spouse; and decree of legal separation, there shall be
(3) The names of all their known liquidation of the ACP or the CPG and
creditors, their addresses and the the spouses will enter into a regime of It should be more explicit that in
amounts owing to each. complete separation of property. But in cases of reconciliation after finality
cases of reconciliation under Arts 66 of the decree of legal separation, the
The agreement of revival and the and 67, they have the option to either: spouses have only two options:
motion for its approval shall be filed
with the court in the same (a.) Remain under a regime of complete (a.) Remain under a regime of
proceeding for legal separation, with separation of property; or complete separation of property; or
copies of both furnished to the (b.) Revive their former property
creditors named therein. After due (b.) Revive their former property regime, by filing a motion and
hearing, the court shall, in its order, regime, by filing a motion and subject to subject to approval by the court in
take measure to protect the interest approval by the court in the same
of creditors and such order shall be proceeding, with copies furnished to
recorded in the proper registries of their creditors.
properties.
However, there seems to be an anomaly
The recording of the ordering in the in
registries of property shall not The Rule on Legal Separation (A.M.
prejudice any creditor not listed or No. 02-11-11-SC), as under Secs. 23
not notified, unless the debtor- and 24, thereof, it mentions the option
spouse has sufficient separate of the spouses to adopt another regime
properties to satisfy the creditor's of property relations. This runs counter
claim. to the provisions of the Family Code as
Art. 67 only mentions revival, not
adopting another regime. Moreso,
under Arts. 88 and 107 of the Family
Code, it is expressly stated that the
property regimes of ACP and CPG can
only commence at the precise moment
that the marriage is celebrated and any
stipulation for the commencement at
any other time shall be void.
the same proceeding, with copies
furnished to their creditors.
But, in cases of a valid re-marriage,
after a final decree of nullity of void
marriages or annulment of voidable
marriages, the parties may be
allowed to:
(a.) Revive their former property
regime, by filing a motion and
subject to approval by the court in
the same proceeding which issued
the decree, with copies furnished to
their creditors.
(b.) Adopt another regime of
property relations, including a
regime of complete separation of
property, as the case may be, through
a marriage settlement.
For the protection of creditors and to
prevent fraud, it is submitted that
whatever regime the parties choose
that would subsequently govern their
property relations, it should be with
 the approval of the court, upon notice
to all their creditors.

PROPOSED REVISIONS in A.M. No. 02-11-11-SC known as

“RE: PROPOSED RULE ON LEGAL SEPARATION”

INTRODUCTION

Family is the basic unit of society. It is inside the family wherein the values and character of a child are first developed.
Hence, a family makes a huge part of an individual and plays a major role in one’s identity. True, however, that no families
are alike. Likewise, no members of a family are similar from each other. Nonetheless, these differences make every family
and every individual special and unique.

The Filipino society gives paramount importance and value to a family. In fact, it has been a custom that a child remains
to live with his or her parents until he or she gets married. Most of the time, a child who is already married still opt to live at
close proximity from his or her parents. When parents get old, it is their child and even their grandchildren who would take
them under their wings and take care of them. In fact, the Constitution acknowledges that the family has the duty to care for
its elderly members but the State may also do so through just programs of social security. 4

The significance of a family is ingrained in the Article II, Section 12 of the 1987 Philippine Constitution which states:

4
Section 4, Article XV of 1987 Philippine Constitution.
 Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and
the development of moral character shall receive the support of the Government.

Further, the entire Article XV of the Constitution is dedicated to family wherein the State recognizes the Filipino family
as the foundation of the nation.5 It is also directs the State to protect the sanctity of marriage, an inviolable social institution,
which serves as the foundation of the family.6 It is also the duty of the State to defend:

1. The right of spouses to found a family in accordance with their religious convictions and the demands of
responsible parenthood;

2. The right of children to assistance, including proper care and nutrition, and special protection from all forms
of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;

3. The right of the family to a family living wage and income; and

4. The right of families or family associations to participate in the planning and implementation of policies and
programs that affect them.7

The primordial interest to preserve the sanctity of marriage and to protect the foundation of the family is the main reason
for the strict adherence to the rules as regards to nullity of marriage and legal separation.

5
Section 1, Article XV of 1987 Philippine Constitution.
6
Section 2, Article XV of 1987 Philippine Constitution.
7
Section 3, Article XV of 1987 Philippine Constitution.
 The Family Code likewise provides rules on when an action for legal separation may be filed and the proceedings to
be observed therein.

Accordingly, A.M. No. 02-11-11-SC, otherwise known as the Rule on Legal Separation, also took effect on March 15,
2003 which laid down the procedural rules that would govern petitions for legal separation under the Family Code of the
Philippines. The Rules of Court, however, shall apply suppletorily.

The Rule on Legal Separation is composed of 25 Sections. Among these sections is Section 6 with respect to the
Investigation Report of the Public Prosecutor. This provision, in my opinion, requires a deeper analysis and improvement.

PROVISIONS, COMMENTS AND RECOMMENDATIONS

SECTION COMMENTS RECOMMENDATIONS

ABSENCE OF DECLARATION OF
PARTY IN DEFAULT

Rule 9, Section 3 of the Rules of

Section 5. Answer. - (a) The
respondent shall file his answer
within fifteen days from receipt
of summons, or within thirty
days from the last issue of
publication in case of service of
summons by publication. The
Court states that the court, shall upon
motion of the petitioner with notice to
respondent, and with proof of such
failure, shall declare the defending party
in default if he fails to answer within the
prescribed period. A party in default
shall be entitled to notice of subsequent
Nonetheless, although there is no
declaration of default, the defending party
may still participate during the trial at any
stages as there is no provision which
precludes him or her otherwise. In case the
defending party decides to participate in the
proceedings after the trial court has rendered
 answer must be verified by proceedings but not to take part in the
respondent himself and not by trial.8
counsel or attorney-in-fact.
Although the Rules of Court states
(b) If the respondent fails to file that a defending party may be declared in
an answer, the court shall not default, the Court, nonetheless, frowns
declare him in default. upon default judgment because it is in
violation of the right of a defending party
to be heard.9 The rationale for the policy
of the law to litigate every case on the
merits has been expounded by the Court
in Coombs v. Santos10 in this wise:
A default judgment does not pretend
to be based upon the merits of the
controversy. Its existence is justified
on the ground that it is the one final
expedient to induce defendant to join
issue upon the allegations tendered
by the plaintiff, and to do so without
unnecessary delay. A judgment by
default may amount to a positive and
considerable injustice to the
defendant; and the possibility of such
judgment, he or she may file a motion for
reconsideration before the trial court, and
subsequently appeal the same before the
appellate court.
On that score, the writer suggests to
include in the provision that a defending
party who failed to file his or answer is not
precluded from participating in any stages of
the proceedings by availing of the
appropriate remedies provided under the
Rules on Legal Separation, and the Rules of
Court. In that manner, the policy of the law
to litigate every case on the merits, and the
right of the defending party to be heard, are
duly protected and preserved.

8
Section 3(a), Rule 9 of the Rules of Court.
9
Momarco Import Company, Inc. v. Villamena, G.R. No. 192477, July 27, 2016.
10
24 Phil. 446, 449-450 (1913).
 serious consequences necessitates a
careful examination of the grounds
upon which the defendant asks that it
be set aside.

Notably, however, a declaration of

default is prohibited under the Rules on
Legal Separation. This has been
explicitly stated under Section 5 of the
Rules, to wit:

Section 5. Answer. - (a) The

respondent shall file his answer
within fifteen days from receipt of
summons, or within thirty days
from the last issue of publication in
case of service of summons by
publication. The answer must be
verified by respondent himself and
not by counsel or attorney-in-fact.

(b) If the respondent fails to file

an answer, the court shall not
declare him in default.

Interestingly, a careful perusal of the

Rules reveals that there is no provision in
 case the defending spouse would opt to
decide to participate in the proceedings
after the prescribed period for filing an
answer has lapsed. It thus give rise to an
assumption that a defending party may
wish to participate in any stage of the
proceedings even on appeal if he or she
so desires.

But what if the defending party

suddenly appeared and expressed his
intention of participating in the case after
the judgment on legal separation has
become final, will this curtail the
doctrine of immutability of judgment?
To my mind, it does not.

The well-settled rule that a decision

which has become final is immutable and
unalterable stands.11 Thus, a defeated
party cannot contest a final judgment of
legal separation since it precludes the
modification of the same, even if the
modification is meant to correct he case
that erroneous conclusions of fact and

11
Mocorro, Jr. v. Ramirez, G.R. No. 178366, July 28, 2008, 560 SCRA 362, 372-373.
 law.12 The doctrine of finality of
judgment is pursuant to public policy and
sound practice that at the risk of
occasional errors, the judgment of
adjudicating bodies must become final
and executory on some definite date
fixed by law.13

INVESTIGATION REPORT OF
THE PUBLIC PROSECUTOR
IF THERE IS PRESENCE OF
COLLUSION

Collusion is defined as secret

SECTION 6. Investigation agreement or cooperation especially for The writer further submits that in grounds
Report of Public Prosecutor. — an illegal or deceitful purpose.14 In under Article 55(1), (2), (3), and (9), the
(a) Within one month after matrimonial cases, collusion is the act of Rules should have deviated from directing
receipt of the court order married persons in procuring a divorce the public prosecutor to submit an
mentioned in paragraph (c) of by mutual consent, whether by pre- investigation report to show that there is no
the preceding section, the public concerted commission by one of a collusion between the parties. To note, the
prosecutor shall submit a report matrimonial offense, or by failure, in grounds stipulated under the aforementioned
to the court on whether the pursuance of agreement, to defend enumeration are in fact constitute criminal
parties are in collusion and serve divorce proceedings".15 offenses penalized under the Revised Penal
12
Ibid.
13
Aliviado v. Procter and Gamble Phils., Inc., G.R. No. 160506, June 6, 2011, 650 SCRA 400.
14
https://www.merriam-webster.com/dictionary/collusion.
15
Brown v. Yambao, G.R. No. L-10699, [October 18, 1957], 102 PHIL 168-173.
 copies on the parties and their Code and/or special penal laws. Repeated
respective counsels, if any. The presence of collusion between physical violence or grossly abusive conduct
the parties to obtain legal separation shall against petitioner, a common child, or a child
(b) If the public prosecutor finds cause the dismissal of the petition. of the petitioner, and physical violence or
that collusion exists, he shall moral pressure to compel petitioner to
state the basis thereof in his Corollarily, it is a long settled change religious or political affiliation are
report. The parties shall file their jurisprudence that a grant of annulment punishable acts under Republic Act No.
respective comments on the of marriage or legal separation by default 9262, otherwise known as “The Anti-
finding of collusion within ten is fraught with the danger of collusion.16 Violence Against Women and their Children
days from receipt of copy of the As such, in all cases for annulment, Act of 2004”.
report. The court shall set the declaration of nullity of marriage and
report for hearing and if legal separation, the prosecuting attorney Under Section 3 of R.A. No. 9262,
convinced that parties are in or fiscal separation is ordered to appear “violence against women and children”
collusion, it shall dismiss the on behalf of the State to prevent any refers to any act or a series of acts committed
petition. collusion between the parties and to by any person against a woman who is his
ensure that evidence presented by them wife, former wife, or against a woman with
(c) If the public prosecutor is not fabricated or suppressed.17 whom the person has or had a sexual or
reports that no collusion exists, dating relationship, or with whom he has a
the court shall set the case for Indeed, it is important that the public common child, or against her child whether
pre-trial. It shall be the duty of prosecutor determines if there is legitimate or illegitimate, within or without
the public prosecutor to appear collusion between the parties. It is the family abode, which result in or is likely
for the State at the pre-trial. necessary on all the grounds for legal to result in physical, sexual, psychological
separation. harm or suffering, or economic abuse
including threats of such acts, battery,
However, I humbly submit otherwise. assault, coercion, harassment or arbitrary

16
Tuason v. Court of Appeals, G.R. No. 116607, [April 10, 1996], 326 PHIL 169-182.
17
Ibid.

At the outset, Article 55 of Executive
Order (E.O.) No. 209, otherwise known
as “The Family Code of the Philippines”,
enumerated the grounds when a petition
for legal separation may be filed, to wit:
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;
18
Section 3(a) (A), R.A. No. 9262.
19
Section 3(a) (C), R.A. No. 9262.
deprivation of liberty. It includes, but is not
limited to, the following acts: (a) physical
violence; (b) sexual violence; (c)
psychological violence; and (d) economic
abuse.
Physical violence refers to acts that
include bodily or physical harm.18 On the
other hand, psychological violence refers to
acts or omissions causing or likely to cause
mental or emotional suffering of the victim
such as but not limited to intimidation,
harassment, stalking, damage to property,
public ridicule or humiliation, repeated
verbal abuse and marital infidelity. It
includes causing or allowing the victim to
witness the physical, sexual or psychological
abuse of a member of the family to which the
victim belongs, or to witness pornography in
any form or to witness abusive injury to pets
or to unlawful or unwanted deprivation of the
right to custody and/or visitation of common
children.19
 (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;
(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.
Among the grounds laid down for
legal separation, the writer suggests that
an investigation report of the public
prosecutor is not necessary when the
ground raised in the petition is
abandonment of petitioner by respondent
without justifiable cause for more than
one year. In case of abandonment as a
20
Section 3(a) (B), R.A. No. 9262.
21
Ibid.
Sexual violence, on one hand, refers to an
act which is sexual in nature, committed
against a woman or her child.20 It includes,
but is not limited to:
a) Rape, sexual harassment, acts of
lasciviousness, treating a woman or her
child as a sex object, making demeaning
and sexually suggestive remarks,
physically attacking the sexual parts of the
victim's body, forcing her/him to watch
obscene publications and indecent shows
or forcing the woman or her child to do
indecent acts and/or make films thereof,
forcing the wife and mistress/lover to live
in the conjugal home or sleep together in
the same room with the abuser;
b) Acts causing or attempting to cause the
victim to engage in any sexual activity by
force, threat of force, physical or other
harm or threat of physical or other harm or
coercion;
c) Prostituting the woman or child.21
 ground for legal separation, a report on
whether there is collusion is nearly
impossible to be obtained. This is
certainly true in cases wherein
respondent can no longer be located or
failed to appear despite service of
summons. It is therefore not surprising
that an investigation report would only
reflect the side of the petitioner.
22
Section 3(b), R.A. No. 7610, reads:
Section 3. Definition of Terms. –
xxx xxx
(b) "Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following:
(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;
Guided by the abovementioned
definition, it is apparently clear that Articles
55(1), (2) and (3) are acts of violence against
women, in case the petitioner spouse is the
wife, and children as defined under R.A. No.
9262.
Not only are Article 55(1) and (3) in cases
wherein the common child or the child of the
petitioner is subjected to physical abuse or
has been corrupted or induced to engage in
prostitution, respectively, are in violation of
R.A. No. 9262, these acts are also punishable
under R.A. 7610, otherwise known as the
"Special Protection of Children Against
Abuse, Exploitation and Discrimination
Act." These are forms of child abuse as the
child is subjected to maltreatment due to
physical abuse or sexual abuse.22
 Anent Article 55(9) of the Family Code,
this constitute a crime of attempted or
frustrated homicide as penalized under the
Article 246 of the Revised Penal Code,
which states:

Article 246. Parricide. - Any person

who shall kill his father, mother, or child,
whether legitimate or illegitimate, or any
of his ascendants, or descendants, or his
spouse, shall be guilty of parricide and
shall be punished by the penalty of
reclusion perpetua to death.

An investigation report may be set aside

on the following grounds. Instead, the
petitioner can be required to submit
corresponding evidence so as to prove the
existence of the grounds raised in the
petition. A complaint filed before the
prosecution office or a certification that a
criminal case against respondent for
violation of the corresponding penal laws can

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;
(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or
(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or
death.

SECTION 6. Investigation
Report of Public Prosecutor. —
(a) Within one month after
receipt of the court order
be sufficient to prove that collusion does not
exist between the parties. It is contrary to
human nature for husband and wife to agree
or to consent with the commission of
physical and sexual violence so as to show
that a ground for legal separation exists. In
the same vein, the presence of a pending
criminal complaint or case filed before the
prosecution office or the court duly proves
that the parties are in collusion. They would
not have subjected and exposed themselves
to criminal investigation, interrogation, or
endure trial proceedings have these acts of
violence were not real.
INVESTIGATION REPORT OF
THE PUBLIC PROSECUTOR
MUST BE SUBMITTED WITHIN
THE PRESCRIBED PERIOD
It is worthy to take note that Section
6 of the Rule on Legal Separation did not
stipulate any prescribed period as to Verily, to include a definite period as to
when the public prosecutor should when the public prosecutor should submit his
submit his report before the court. A report before the court will prevent the
prescribed period should be stipulated in proceedings from being attended by
 mentioned in paragraph (c) of
the preceding section, the public
prosecutor shall submit a report
to the court on whether the
parties are in collusion and serve
copies on the parties and their
respective counsels, if any.
(b) If the public prosecutor finds
that collusion exists, he shall
state the basis thereof in his
report. The parties shall file their
respective comments on the
finding of collusion within ten
days from receipt of copy of the
report. The court shall set the
report for hearing and if
convinced that parties are in
collusion, it shall dismiss the
petition.
(c) If the public prosecutor
reports that no collusion exists,
the court shall set the case for
pre-trial. It shall be the duty of
23
Roquero v. Chancellor of UP-Manila, G.R. No. 181851, March 9, 2010, 614 SCRA 723, 732.
24
Ibid.
order to ensure the speedy disposition of vexatious, capricious, and oppressive delays.
cases. This is a person’s right guaranteed Further, it will avoid postponements of the
under Section 16, Article III of the 1987 trial for a long period of time without the
Constitution which states: party having his case tried. Note, however,
that the period to be imposed must be
Section 16. All persons shall have adequate enough so as to give ample
the right to a speedy disposition of opportunity for the public prosecutor to
their cases before all judicial, conduct and to prepare the report required by
quasi-judicial, or administrative the procedure.
bodies.
The right to speedy disposition of
cases right is not limited to the accused
in criminal proceedings. It also extends
to all parties in all cases, be it civil or
administrative in nature, as well as all
proceedings, either judicial or quasi-
judicial.23 Thus, any party to a case may
demand expeditious action to all officials
who are tasked with the administration of
justice.24
 the public prosecutor to appear
for the State at the pre-trial.

PARTIES MUST BE REQUIRED

TO UNDERGO
COUNSELING DURING THE SIX-
MONTHS
COOLING OFF PERIOD

Article 58 of the Family Code

The writer notes that the Rules mandates that an action for legal
on Legal Separation do not separation must "in no case be tried
require parties to undergo before six months shall have elapsed
counseling. since the filing of the petition,"
obviously in order to provide the parties
a "cooling-off" period. During this
period, the court should take steps
toward getting the parties to reconcile.25
In this light, the writer suggests to include
a provision in mandating the parties to see a
psychologist for counseling. The counseling
must be conducted during the period of the
cooling-off period and may continue during
the trial. To require the parties to undergo
counseling is in accordance with the intent of
the law, i.e. for them to reconcile and to
preserve the sanctity of marriage and family.

CONCLUSION

25
Pacete v. Carriaga, Jr., G.R. No. 53880, [March 17, 1994], 301 PHIL 328-338.
 To conclude, the suggested revisions will help strengthen our procedural rules on legal separation. Still, the sanctity of
marriage and family life is duly preserved and further protected as mandated in our 1987 Constitution. As time continues to
change, so does our laws and rules in order to adopt to the never-ending metamorphosis the Filipino society experiences.