COOLING OFF PERIOD

ARANETA VS. CONCEPCION

https://www.chanrobles.com/cralaw/1956julydecisions.php?id=269

EN BANC

G.R. No. L-9667

LUIS MA. ARANETA, Petitioner

v. HONORABLE HERMOGENES CONCEPCION as judge of CFI Manila, Branch VI, EMMA BENITEZ
ARANETA, Respondents

LABRADOR, J.:

Facts:
 The main action was brought by Petitioner against his wife Emma for legal separation on
the ground of adultery
 The wife filed an omnibus petition to secure custody of their three minor children, a
monthly support of P5,000 for herself and said children, and the return of her passport
  Plaintiff opposed the petition, alleging Defendant had abandoned the children; conjugal
properties were worth only P80,000, not one million pesos 
 Respondent Judge Concepcion resolved the omnibus petition, granting the custody of the
children to Defendant and a monthly allowance of P2,300 for support for her and the
children, P300 for a house and P2,000 as attorney’s fees
 The main reason given by the judge, for refusing Plaintiff’s request that evidence be allowed
to be introduced on the issues is Art 103 of Civil Code, “An action for legal separation shall
in no case be tried before six months shall have elapsed since the filing of the petition.”
 Upon refusal of the judge to reconsider the order, Petitioner filed the present petition for
certiorari against said order and for mandamus to compel the Respondent judge to require
the parties to submit evidence before deciding the omnibus petition.

Issue:
 WON the prohibition contained in Art 103 of the Civil Code preclude the court from
admitting evidence on an omnibus petition for support and custody

Held:
 No, Art 103 of the Civil Code does not preclude the court from admitting evidence on an
omnibus petition for support and custody.

WHEREFORE the writ prayed for is hereby issued.

 Respondent judge or whosoever takes his place is ordered to PROCEED on the question of
custody and support pendente lite in accordance with this opinion.
 The court’s order fixing the alimony and requiring payment is REVERSED.
RATIO:

 It is conceded that the period of six months fixed in Art 103 of the Civil code is evidently
intended as a cooling off period to make possible a reconciliation between the spouses. 
 However, it does not override other provisions such as the determination of the custody of
the children and alimony and support pendente lite according to the circumstances.
 The law expressly enjoins that these should be determined by the court according to the
circumstances. If these are ignored or the courts close their eyes to actual facts, rank in
justice may be caused.
 Therefore, evidence not affecting the cause of the separation, like the actual custody of the
children, the means conducive to their welfare and convenience during the pendency of the
case should be allowed so that the court may determine which is best for their custody.
 Article 105, Civil Code, now Art. 49, Family Code

OID
 ARANETA VS. CONCEPCION

Luis Araneta filed an action for legal separation on the ground of adultery against his wife
Emma. After the issues were enjoined, Emma filed an omnibus petition, supported by her
Affidavit, to secure custody of their three minor children and a monthly support for herself
and said children. Luis opposed the petition, alleging that Emma had abandoned the
children. He prayed that the parties be required to submit their respective evidence.
Judge Concepcion resolved the omnibus petition, granting the custody of the children to
Emma and a monthly allowance for support for her and the children. Upon refusal of
the judge to reconsider the order, Luis filed a petition for certiorari and mandamus. The
main reason given by the judge, for refusing Luis’ request that evidence be allowed to be
introduced on the issues, is the prohibition contained in Article 103 of the Civil Code, which
reads as follows: “ART. 103. An action for legal separation shall in no case be tried before six
months shall have elapsed since the filing of the petition.” (now Art 58, Family Code)” The
court ruled that that it does not override other provisions such as the determination of the
custody of the children and alimony and support pendente lite according to the
circumstances. The writ prayed for is hereby issued.

 Omnibus petition provides that where two or more suits are pending in the same court in
which similar questions of law or fact are involved the suits may be consolidated. either
upon the application of the parties or at the court’s own motion and its discretion.
COOLING OFF PERIOD
Ramos v Vamenta Jr., Ramos
https://www.chanrobles.com/scdecisions/jurisprudence1972/jul1972/gr_l_34132_1972.php

EN BANC

G.R. No. L-34132

July 29, 1972

LUCY SOMOSA-RAMOS, Petitioner

v. THE HONORABLE CIPRIANO VAMENTA, JR., CLEMENTE G. RAMOS, Respondents

T. R. Reyes & Associates for Petitioner

Soleto J. Erames for Respondents

FERNANDO, J.:

FACTS
 Lucy filed a case for legal separation against Clemente on the ground of concubinage and an
attempt by him against her life on June 18, 1971.
 She likewise sought the issuance of a writ of preliminary mandatory injunction for the
return to her of what she claimed to be her paraphernal and exclusive property, then under
the administration and management of respondent Clemente Ramos.
 Clemente opposed the motion on based on Article 103 of the Civil Code which provides: "An
action for legal separation shall in no case be tried before six months shall have elapsed since
the filing of the petition” (now Art 58, Family Code).
 Judge Vamenta on an order dated August 4, 1971 granted the motion of Clemente and
suspended the hearing of the petition for a writ of mandatory preliminary injunction
 Henceforth this petition for certiorari

Issue
 WON 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 Article 103 the Civil Code is not an absolute bar to the hearing motion for preliminary
injunction prior to the expiration of the six-month period

WHEREFORE, the plea of petitioner for a writ of certiorari is granted.

The order of respondent Court of August 4, 1971 is set aside.
Respondent Judge is directed to proceed without delay to hear the motion for preliminary
mandatory injunction.
Costs against respondent Clemente G. Ramos.
Ratio
  The law 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." (now Art. 61, Family Code)
 The absolute limitation from which the court suffers under the Art 103 is thereby eased.
  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.
 At any rate, from the time of the issuance of the order complained of on August 4, 1971,
more than six months certainly had elapsed. Thus there can be no more impediment for the
lower court acting on the motion of petitioner for the issuance of a writ of preliminary
mandatory injunction

OID
 Ramos v Vamenta Jr., Ramos
 The wife Lucy filed a case for legal separation against Clemente on the ground of
concubinage and an attempt by him against her life. She likewise sought the issuance of a
writ of preliminary mandatory injunction for the return to her of what she claimed to be her
paraphernal and exclusive property, then under the administration and management of
Clemente. Clemente opposed the motion based on Article 103 of the Civil Code which
provides: "An action for legal separation shall in no case be tried before six months shall
have elapsed since the filing of the petition” (now Art 58, Family Code). Judge Vamenta
granted the motion of Clemente and suspended the hearing of the petition for a writ of
mandatory preliminary injunction. Thus, Lucy filed a petition for certiorari. The question
raised in this petition for certiorari is 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. It was held that Article
103 the Civil Code is not an absolute bar to the hearing motion for preliminary injunction
prior to the expiration of the six-month period.
 Article 103 of the Civil Code provides that: "An action for legal separation shall in no case
be tried before six months shall have elapsed since the filing of the petition” (now Art 58,
Family Code).
COOLING OFF PERIOD
PACETE VS. CARRIAGA
https://www.chanrobles.com/cralaw/1994marchdecisions.php?id=468

THIRD DIVISION
G.R. No. L-53880
March 17, 1994

ENRICO L PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C. PACETE and

EDUARDO C. PACETE, Petitioners
v. HONORABLE GLICERIO V. CARRIAGA, JR. AND CONCEPCION (CONCHITA) ALANIS PACETE,
Respondents

VITUG, J.:

FACTS:
 On October 29, 1979, Concepcion Alanis filed with the court below a complaint for the
declaration of nullity of the marriage between her erstwhile husband Enrico L. Pacete and
one Clarita de la Concepcion
 as well as for legal separation (between Alanis and Pacete), accounting and separation of
property.
 The defendants Enrico and Clarita 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.
 After trial, the court rendered a decision in favor of the plaintiff on March 17, 1980.
 Hence, the instant special civil action of certiorari

Issue:
 WON the RTC gravely abused its discretion
1. in denying petitioners’ motion for extension of time to file their answer in Civil Case
No. 2518,
2. in declaring petitioners in default due to failure to file an answer on the date set by
court
3. in rendering its decision of 17 March 1980 which, among other things, decreed the
legal separation of petitioner Enrico L. Pacete and private respondent Concepcion
Alanis
4. and held to be null and void ab initio the marriage of Enrico L. Pacete to Clarita de la
Concepcion.
Held:
 YES, the RTC gravely abused its discretion to all the above issues.

WHEREFORE, the petition for certiorari is hereby GRANTED and

the proceedings below, including the Decision of 17 March 1980 appealed from, are
NULLIFIED and SET ASIDE. No costs.

Ratio
 A petition for certiorari is allowed when the default order is improperly declared, or even
when it is properly declared, where grave abuse of discretion attended such declaration.
 In the case at bench, the default order unquestionably is not legally sanctioned.
 Therefore, a special civil action of certiorari to declare the nullity of a judgment by default is
available.
 Art. 101. 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 a collusion between the 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.
 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.
 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.
OID
 Pacete v. Carriaga
 Concepcion Alanis filed with the court below a complaint for the declaration of nullity of the
marriage between her husband Enrico L. Pacete and one Clarita de la Concepcion as well as
for legal separation (between Alanis and Pacete), accounting and separation of property.
The defendants Enrico and Clarita 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. The trial court the rendered a decision in favor of the plaintiff on
March 17, 1980. Hence, the instant special civil action of certiorari. The petition for
certiorari is GRANTED by the supreme court, stating as basis Art 101 of Civil Code (now Art
60 of the Family code) and Art 103 (now Art 58 of the Family Code).
 Art. 101. No decree of legal separation shall be promulgated upon a stipulation of facts or by
confession of judgment.
 Art. 103. An action for legal separation shall in no case be tried before six months shall have
elapsed since the filing of the petition.