Legal Separation – is a legal remedy for couples suffering from a problematic marriage.

In legal
separation, the couple is allowed to live apart and separately own assets. However, legally
separated couples are not permitted to remarry, since their marriage is still considered valid and
subsisting.

RULE ON LEGAL SEPARATION (A.M. 02-11-11-SC)

 took effect on March 15, 2003

 this Rule shall govern petitions for legal separation under the Family Code in the
Philippines; the Rules of Court shall apply suppletory

 please refer to the Remedial Law Memory Aid for the procedural provisions of the Rule

Grounds for Legal Separation:

 repeated physical violence or grossly abusive conduct directed against the petitioner, a
common child, or a child of the petitioner
 attempt of the 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
 attempt by the respondent against the life of the petitioner
 final judgment sentencing the respondent to imprisonment of more than 6 years even if
pardoned
 drug addiction or habitual alcoholism of the respondent
 lesbianism or homosexuality of the respondent
 abandonment of the petitioner by the respondent without justifiable cause for more than 1
year
 physical violence or moral pressure to compel petitioner to change religious or political
affiliation
 contracting by respondent of a subsequent bigamous marriage; and
 sexual infidelity or perversion.

Effects of Legal Separation

 Separation: The spouses become entitled to live separately from each other and their
obligation of mutual support ceases.
 Property Relations: The common property of the marriage is dissolved and liquidated,
but the spouse at fault shall have no right to any share of the net profits earned by their
common property. This share of the net profits is forfeited in favor of the children or the
innocent spouse.
  Custody of Child: Subject to court discretion on the best interests of the child, the
custody of the minor children will be awarded to the innocent spouse but no child under 7
years shall be separated from the mother unless there are compelling reasons.
 Support: During the pendency of the action, child and spousal support will be governed
by either written agreement, or in the absence thereof, from the ACP/CPG. After decree,
either parent or both may be ordered by the court to given an amount necessary for
support in proportion to resources/means of giver and necessities of the recipient. Spousal
support is considered as an advance to be deducted from the share of the spouse
supported during liquidation
 Succession: The spouse at fault becomes disqualified from inheriting from the innocent
spouse whether with or without a last will and testament.

Steps in an Action for Legal Separation

1. Preparation of the Petition: The petition shall allege the complete facts constituting the
cause of action. It shall state the names and ages of the common children of the parties and
specify the regime governing their property relations, as well as the properties involved.

If there is no adequate provision in a written agreement between the parties, the petitioner
may apply for a provisional order for spousal support, custody and support of common
children, visitation rights, administration of community or conjugal property, and other
matters similarly requiring urgent action.

2. Filing of Petition. The petition is filed with the Regional Trial Court. Cases involving
marriage and family matters will be raffled only to designated Family Courts. This will take
about a week. After the raffle, the petition will be forwarded to the selected court.

The petitioner shall serve a copy of the petition on the Office of the Solicitor General (OSG)
and the Office of the City or Provincial Prosecutor (OCP/OPP), within 5 days from the date
of its filing and submit to the court proof of such service within the same period.

After the filing of the petition for legal separation, the spouses shall be entitled to live
separately from each other.

3. Summons. The court will issue summons one or two weeks after the case is raffled. Where
the respondent cannot be located at his given address or his whereabouts are unknown and
cannot be ascertained by diligent inquiry, service of summons may, with the permission of
the court, be affected upon him by publication once a week for two consecutive weeks in a
newspaper of general circulation in the Philippines and in such places as the court may order.
4. Answer. The respondent shall file his answer within 15 days from service of summons, or
within 30 days from the last issue of publication in case of service of summons by
publication.

5. Cooling-Off Period. An action for legal separation shall in no case be tried before 6 months
shall have elapsed since the filing of the petition.

6. Mediation/Reconciliation. 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.

7. Collusion Hearing. In any case, the court shall order the prosecuting attorney assigned to the
case to take steps to prevent collusion between the parties and to take care that the evidence
is not fabricated or suppressed.

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 10
days from receipt of a copy of the report. The court shall set the report for hearing and if
convinced that the parties are in collusion, it shall dismiss the petition.

If the public prosecutor reports that no collusion exists, the court shall set the case for pre-
trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.

8. Preliminary Hearing/ Pre-Trial Order. The court will hold a preliminary hearing, which
requires both parties to attend. A pre-trial order will be issued. Usually, the preliminary
hearing is called about two to four months after the filing of the petition.

9. Please note that no legal separation shall be based upon a stipulation of facts or a confession
of judgment. The petitioner must present his/her evidence on the grounds for legal
separation. For the respondent’s part, s/he may raise the following defenses:

(1) condonation;

(2) consent;

(3) connivance;

(4) recrimination;

(5) collusion; and

(6) prescription.
 The number witnesses will depend on the case, but usually, one to two witnesses will be
enough, if the case is not contested (meaning, the respondent will not object). The witnesses
will be the petitioner herself/himself and one collaborating witness.

10. Decision. The Court will then issue an order that the case is submitted for resolution. The
decision may be released 30-90 days after the said order is issued.

11. Decree of Legal Separation. The court shall issue the decree of legal separation after:

(a) registration of the entry of judgment granting the petition for legal separation in the
Civil Registry where the marriage was celebrated and in the Civil Registry where
the Family Court is located; and

(b) registration of the approved partition and distribution of the properties of the
spouses, in the proper Register of Deeds where the real properties are located. The
court shall quote in the Decree the dispositive portion of the judgment entered and
attach to the Decree the approved deed of partition.

An action for legal separation may be finished from 10 months or several years depending on
various factors like the complexity of the case (e.g. properties and custody, support, etc. are
heavily contested), availability of the court, witnesses and documentary evidence, and also
the place where the petition will be filed.

Requirements and Costs for Legal Separation

Below is a list of some of the requirements before filing a petition for legal separation:

 NSO copy of marriage certificate of the spouses and birth certificates of the children
(obtained within 6 months from the filing of the petition)

 Barangay certificate and Community Tax Certificate evidencing residence over the last 6
months of the province or city where the petition will be filed

 Copy of marriage settlement or pre-nuptial agreement, if any

 Copy of agreement, if any, relating to custody, support, etc.

 Inventory of properties of the spouses and of the ACP or CP (Please see questionnaire or
other document request list of the counsel)

 List of witnesses (Please see questionnaire to be provided by the counsel)

  Other documentary or object evidence

The major cost components of an action for legal separation include the following:

 Filing Fee (Under PhP10,000.00, if no properties are involved; higher, if there are
properties involved);

 Legal Fees (Acceptance Fee, Pleading Fees, Appearance Fees);

 Costs and Other Charges (call charges, photocopying and other reproduction costs,
delivery fees, postage, and other similar items)

Question: How does a spouse avail legal separation

Answer: A petition may be filed at the Family Court by either the husband or the wife within 5
years of the occurrence of the ground for legal separation.

Question: Can a petition for legal separation be denied

Answer: Yes. The following are the grounds for denying such a petition:

(1) Where the aggrieved party has condoned the offense or act complained of;

(2) Where the aggrieved party has consented to the commission of the offense or act
complained of;

(3) Where there is connivance between the parties in the commission of the offense or act
constituting the ground for legal separation;

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

(5) Where there is collusion between the parties to obtain a decree of legal separation; or

(6) Where the action is barred by prescription.

NOTES:

 Cooling-off Period – 6 months period designed to give the parties enough time to further
contemplate their positions with the end in view of attaining reconciliation between them.
  The enumeration in Article 55 regarding legal separation is EXCLUSIVE. (Lacson vs.
San Jose-Lacson)

Grounds for denial of petition: 

a. Condonation -NOTE: failure of the husband to look for his adulterous wife is NOT
condonation to wife's adultery. (Ocampo vs. Florenciano)            

b. Consent

c. Connivance              

d. Collusion

e. Mutual Guilt

f. Prescription

g. Death of either party during the pendency of the case (Lapuz-Sy vs. Eufemio)

h. Reconciliation of the spouses during the pendency of the case

Effects of filing petition:

a. The spouses shall be entitled to live separately from each other.

b. The husband shall have no more right to have sexual intercourse with his wife.

c. In the absence of an agreement between the parties, the court shall designate the husband,
the wife, or a 3rd person to manage the absolute community or conjugal partnership
property.

Effects of decree of legal separation:

a. The spouses shall be entitled to live separately from each other but the marriage bond is
not severed.

b. The absolute community or conjugal partnership shall be dissolved and liquidated.

 c. The custody of the minor children shall be awarded to the innocent spouse subject to the
provisions of Art. 213 of the Code.

d. The offending spouse shall be disqualified from inheriting from the innocent spouse by
intestate succession and the provisions in favor of the offending spouse made in the will
of the innocent spouse shall be revoked by operation of law.

e. The innocent spouse may revoke the donations made by him/her in favor of the
offending spouse, as well as the designation of the latter as beneficiary in any insurance
policy, even if the designation be irrevocable.

Effects of Reconciliation of the Spouses:

a. The legal separation proceedings, if still pending, shall thereby be terminated at whatever
stage.

b. The final decree of legal separation shall be set aside, but the separation of property and
any forfeiture of share of the guilty spouse already effected shall subsist, unless the
spouses agree to revive their former property regime.

MARITAL RIGHTS AND OBLIGATIONS 

1. live together

2. observe mutual love, respect & fidelity

3. render mutual help & support

4. fix the family domicile

5. joint responsibility for the support of the family

6. management of the household

Exercise of Profession

GENERAL RULE: Husband & wife can engage in any lawful enterprise or profession without
the consent of the other.

EXCEPTION: Upon objection of the other spouse only on valid, serious and moral grounds, may
the former’s consent be necessary.
Property Relations Between Husband & Wife

Governed by:

1. marriage settlements executed before the marriage or antenuptial agreements

2. provisions of the Family Code

3. local customs (when spouses repudiate absolute community)

MARRIAGE SETTLEMENTS

 It is a contract entered into by the future spouses fixing the matrimonial property regime
that should govern during the existence.

 Requisites:

1. made before celebration of marriage

2. in writing (even modifications)
3. signed by the parties
4. not prejudice third persons unless registered in the civil registry
5. to fix terms and conditions of their property relations
6. additional signatories

1. 18-21: parents
2. civil interdictees & disabled: guardian 

Not applicable when:

1. both spouses are aliens, even if married in the Philippines

2. as to extrinsic validity of contracts
3. contrary stipulation

DONATIONS BY REASON OF MARRIAGE

Requisites: (COBB)

1. made before celebration of marriage

 2. in consideration of marriage
3. in favor of one or both future spouses

BASES DONATIONS ORDINARY

PROPTER DONATIONS
NUPTIAS
Formalities Governed by the Governed by rules on
rules on ordinary donations (Arts. 725-
donations except 773, NCC)
that if future
property is donated,
it must conform with
formalities of wills
Present May be donated but
No limit except that
Property up to 1/5 of donor’s
donor shall leave
present property
property enough for his
support
Future May be included Cannot be included
property provided donation is
mortis causa
Grounds for Art. 86, FC Arts. 760, 764, & 765,
revocation NCC

Rule on Donation Between Spouses During Marriage

GENERAL RULE: VOID, either direct or indirect donation

EXCEPTIONS:

1. moderate gifts on occasions of family celebrations

2. donations mortis causa

NOTE:  This rule also applies to common-law spouses. (Article 87, Family Code)

Grounds for Revocation (VIRAL-CN)

1. marriage Not celebrated or declared Void ab initio except those made in marriage

settlements
 2. marriage without parental Consent

3. marriage is Annulled and donee is in bad faith

4. upon Legal separation, the donee being the guilty spouse

5. complied Resolutory condition

6. donee commits acts of Ingratitude

SYSTEM OF ABSOLUTE COMMUNITY (AC)

 The property regime of the spouses in the absence of a marriage settlement or when the
marriage is void. This is so because it is more in keeping with Filipino culture.

GENERAL RULE: Community property shall consist of all property owned by the spouses at
the time of the marriage or acquired thereafter.

EXCEPTIONS: (BEG)

1. property acquired before the marriage by either spouse who has legitimate descendants
by a former marriage

2. property for personal and exclusive use except jewelry

3. property acquired during the marriage by gratuitous title, except when the donor,
testator or grantor expressly provides otherwise

NOTE: No waiver of rights allowed during the marriage except in case of judicial separation of
property. The waiver must be in a public instrument.

Administration of the community property

GENERAL RULE: It shall belong to both spouses jointly.

EXCEPTIONS: 

1. In case of disagreement, husband’s decision shall prevail.

 2. In case one spouse is incapacitated or unable to participate in the administration of
the common properties, other spouse may assume sole powers.

NOTE: These powers do not include:  

a. Disposition    

b. encumbrance 

NOTE: Any alienation or encumbrance is void if without the written consent of the other spouse

Rule on Game of Chance

 LOSS: Shall be borne by the loser-spouse and shall not be charged to the community
property

 WINNINGS: Shall form part of the community property

Steps in Liquidation of AC: (IP-DDP)

1. Inventory

a. Inventory of Community Property

b. Inventory of separate property of the wife

c. Inventory of separate property of the husband

2. Payment of Community Debts

 First, pay out of community assets, if not enough, husband and wife are solidarily liable

3. Delivery to each spouse his/her separate property if any

4. Division of the net community assets

5. Delivery of presumptive legitimes, if any, to the children

CONJUGAL PARTNERSHIP OF GAINS (CP)

 It is that formed by a husband and wife whereby they place in a common fund the fruits
of their separate property, and the income from their work or industry, the same to be
divided between them equally (as a general rule) upon the dissolution of the marriage or
the partnership.

Conjugal Partnership Property: (LC2 FONT)

1. obtained from labor, industry, work or profession

2. acquired by chance

3. acquired during the marriage with conjugal funds

4. fruits of the conjugal property

5. acquired through occupation 

6. net fruits of their exclusive property

7. share of either spouse in hidden treasure

Exclusive Property of Each Spouse: (OGRE)

1. that which is brought to the marriage as his/her own

2. acquired during the marriage by gratuitous title

3. acquired by right of redemption, barter or exchange with property belonging to either

spouse

4. purchased with exclusive money of either spouse