LEGAL SEPARATION:

Pacete v. Carriaga

G.R. No. 53880

March 17, 1994

Facts:

Enrico Pacete and Concepcion Alanis were married in 1938. Pacete contracted another marriage to
Clarita de la Concepcion, which Alanis knew about only on August 1, 1979. During the marriage, Pacete
acquired properties that he registered either under his name or Clarita or in the names of his children
with Clarita or with other dummies. Thus, on October 29, 1979, Alanis filed a complaint for the
declaration of nullity of marriage between Pacete and de la Concepcion as well as for legal separation
between her and her husband.

The defendants were served with summons on November 15, 1979. They filed a motion for extension of
20 days, which the court granted. On December 18, 1979, the defendants again filed a motion for
extension through a new counsel. The court granted the motion, setting the deadline to January 9, 1980.
Although the court’s order was mailed to the defendants’ counsel on January 11, 1980, they again filed a
motion for extension on February 5, 1980. The next day, the court denied the motion for extension and
granted petitioner Alanis’ motion to declare the defendants in default.

The Court of First Instance, in its decision on March 17, 1980, decreed the legal separation of Pacete and
Alanis as well as declared null and void ab initio the marriage between Pacete and de la Concepcion.

Issue:

Did the Court of First Instance commit grave abuse of discretion?

Ruling:

Yes. A petition for certiorari is applicable when grave abuse of discretion attended the declaration of the
decision. Article 101 of the Civil Code, which was later reproduced in Article 60 of the Family Code,
provides

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

The court did not follow the procedure mandated by the said procedure. Furthermore, Article 3 of the
Civil Code, now Article 58 of the Family Code, mandates that an action for legal separation shall in no
case be tried before 6 months shall have elapsed since the filing of the petition to allow the parties to
have a cooling-off period.

In addition, Section 6 of Rule 18 of the Rules of Court provides

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.

The State is interested in the integrity of marriage as evidenced by the provisions of law mentioned.
There is no excuse for non-compliance with the procedures required by statute.

Plaintiff-Appellant: Pastor B. Tenchavez

Defendants-Appellees: Vicenta F. Escaño, et al.

15 SCRA 355

G.R. No. L-19671

November 29, 1965

FACTS:

Pastor and Vicenta entered into a secret marriage before a Catholic chaplain. Upon discovery of their
daughter’s marriage, spouses Mamerto and Mena sought priestly advice where it was suggested that
the marriage be recelebrated. However, the recelebration did not take place and the newlyweds
eventually became estranged. Later, unknown to Pastor, Vicenta left for the United States. There, she
filed a complaint for divorce on the ground of extreme mental cruelty, and an absolute divorce was
granted by the Court of Nevada. She later sought for the annulment of her marriage from the
Archbishop of Cebu. Vicenta eventually married an American in Nevada and acquired American
citizenship.

ISSUES:

1.) Whether or not the divorce obtained by Vicenta abroad was valid and binding in the Philippines;

2.) Whether or not Tenchavez is entitled to legal separation and to moral damages.
RULING:

1.) No. The Court held that under Philippine law, the valid marriage between Tenchavez and Escaño
remained subsisting and undissolved notwithstanding the decree of absolute divorce that the wife
sought and obtained in Nevada. Article 15 of the Civil Code of the Philippines which was already in force
at the time expressly provided that “Laws relating to family rights and duties or to the status, condition
and legal capacity of persons are binding upon the citizens of the Philippines, even though living
abroad.” Here, at the time the divorce decree was issued, Vicenta, like her husband, was still a Filipino
citizen. She was then still subject to Philippine law, which does not admit absolute divorce. Thus, under
Philippine law, the divorce was invalid.

2.) Yes. The Court ruled that it can be gleaned from the facts and considerations that Tenchavez is
entitled to a decree of legal separation on the basis of adultery as provided under Art. 333 of the
Revised Penal Code. Since our jurisdiction does not recognize Vicenta’s divorce and second marriage as
valid, her marriage and cohabitation with the American is technically “intercourse with a person not her
husband” from the standpoint of Philippine Law. Her refusal to perform her wifely duties, and her denial
of consortium and her desertion of her husband also constitute in law a wrong for which the husband is
entitled to the corresponding indemnity. Thus, the latter is entitled to a decree of legal separation
conformably to Philippine law.

As to moral damages the Court assessed Tenchavez’s claim for a million pesos as unreasonable, taking
into account some considerations. First, the marriage was celebrated in secret, and its failure was not
characterized by publicity or undue humiliation on his part. Second, the parties never lived together.
Third, there is evidence that Tenchavez had originally agreed to the annulment of the marriage,
although such a promise was legally invalid, being against public policy. Fourth, the fact that Tenchavez
is unable to remarry under our law is a consequence of the indissoluble character of the union that he
entered into voluntarily and with open eyes. Therefore, he should recover P25,000 only by way of moral
damages and attorney’s fees.

GROUNDS:
Art. 97, New Civil Code
-Art. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for concubinage on the part of the husband as defined in the
Penal Code; or

(2) An attempt by one spouse against the life of the other. (n)

Art. 55, Family Code

-Sexual infidelity or perversion; Attempt by the respondent against the life of the petitioner; or.
Abandonment of petitioner by respondent without justifiable cause for more than one year.

-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;

(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.

For purposes of this Article, the term "child" shall include a child by nature or by adoption.

Art. 101, Family Code

-If a spouse without just cause abandons the other or fails to comply with his or her obligations to the
family, the aggrieved spouse may petition the court for receivership, for judicial separation of property
or for authority to be the sole administrator of the absolute community, subject to such precautionary
conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to marital, parental or
property relations.

A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without
intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has
failed within the same period to give any information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal dwelling.

Art. 247, Revised Penal Code

-Art. 247. Death or physical injuries inflicted under exceptional circumstances. — Any legally married
person who having surprised his spouse in the act of committing sexual intercourse with another
person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon
them any serious physical injury, shall suffer the penalty of destierro.

Arts. 333 & 334, Revised Penal Code

-Under Article 333, adultery may only be committed by a married woman and by a man who shall have
sexual intercourse with her.

-Adultery is committed by anymarried woman who shall have sexual intercourse with a man not
herhusband and by the man who has carnal knowledge of her, knowing her tobe married, even if the
marriage be subsequently declared void. Adultery shall be punished by prision correccional in its
medium andmaximum periods

-Article 334, concubinage may be committed by a husband only under certain conditions which are
difficult to prove.

-Any husband who shall keep a mistress in theconjugal dwelling, or, shall have sexual intercourse,
under scandalouscircumstances, with a woman who is not his wife, or shall cohabit with her
Hernandez v. Court of Appeals

G.R. No. 126010

December 8, 1999

Facts:

Petitioner Lucita Estrella Hernandez and private respondent Mario C. Hernandez were married at the
Silang Catholic Parish Church

Three children were born to them, namely, Maie, Lyra, On July 10, 1992, petitioner filed before the
Regional Trial Court... a petition seeking the annulment of her marriage to private respondent on the
ground of psychological incapacity of the latter. She alleged that from the time of their marriage up to...
the time of the filing of the suit, private respondent failed to perform his obligation to support the family
and contribute to the management of the household, devoting most of his time engaging in drinking
sprees with his friends. She further claimed that private respondent,after they were married, cohabited
with another woman with whom he had an illegitimate child, while having affairs with different women,
and that, because of his promiscuity, private respondent endangered her health by infecting her with a
sexually transmissible disease (STD).

She averred that private respondent was irresponsible, immature and unprepared for the duties of a
married life. Petitioner prayed that for having abandoned the family, private respondent be ordered to
give support to their three children in the total amount of P9,000.00 every month purchased during the
marriage, as well as the jeep which private respondent took with... him when he left the conjugal home

Petitioner and private respondent met in 1977 at the Philippine Christian University in Dasmariñas,
Cavite.

Petitioner, who is five years older than private respondent, was then in her first year of teaching zoology
and botany. Private respondent, a college freshman, was her... student for two consecutive semesters.
They became sweethearts in February 1979 when she was no longer private respondent's teacher. On
January 1, 1981, they were married.

Private respondent continued his studies for two more years. His parents paid for his tuition fees, while
petitioner provided his allowances and other financial needs. The family income came from petitioner's
salary as a faculty member of the Philippine Christian University.

Petitioner augmented her earnings by selling "Tupperware" products, as well as engaging in the buy-
and-sell of coffee, rice and polvoron.

From 1983 up to 1986, as private respondent could not find a stable job, it was agreed that he would
help petitioner in her businesses by delivering orders to customers. However, because her husband was
a spendthrift and had other women, petitioner's business suffered. Private respondent often had
smoking and drinking sprees with his friends and betted on fighting cocks. In 1982, after the birth of
their first child, petitioner discovered two love letters written by a certain Realita Villena to private
respondent. She knew Villena as a married student whose husband was working in Saudi Arabia. When
petitioner confronted private respondent, he admitted having an extra-marital affair with Villena.
Petitioner then pleaded with Villena to end her relationship with private respondent. For his part,
private respondent said he would end the affairs, but he did not keep his promise. Instead, he left the
conjugal home and abandoned petitioner and their child. When private respondent came back,
however, petitioner accepted him, despite private respondent's infidelity in the hope of saving their
marriage.

Upon the recommendation of a family friend, private respondent was able to get a job at Reynolds
Philippines, Inc. in San Agustin, Dasmariñas, Cavite in 1986. However, private respondent was employed
only until March 31, 1991, because he availed himself of the early retirement plan offered by the
company. He received P53,000.00 in retirement pay, but instead of spending the amount for the needs
of the family, private respondent spent the money on himself and consumed the entire amount within
four months of his retirement.

While private respondent worked at Reynolds Philippines, Inc., his smoking, drinking, gambling and
womanizing became worse. Petitioner discovered that private respondent carried on relationships with
different women. He had relations with a certain Edna who worked at Yazaki;

Angie, who was an operator of a billiard hall; Tess, a "Japayuki"; Myrna Macatangay, a secretary at the
Road Master Driver's School in Bayan, Dasmariñas, Cavite, with whom he cohabited for quite a while;
and, Ruth Oliva, by whom he had a daughter named Margie P. Oliva

When petitioner confronted private respondent about his relationship with Tess, he beat her up

According to petitioner, private respondent engaged in extreme promiscuous conduct during the latter
part of 1986. As a result, private respondent contracted gonorrhea and infected petitioner. They both
received treatment

Petitioner averred that on one occasion of a heated argument, private respondent hit their eldest child
who was then barely a year old. Private respondent is not close to any of their children as he was never
affectionate and hardly spent time with them.

Petitioner told private respondent of her intention to file a petition for the annulment of their marriage.

It does not appear that private respondent ever replied to petitioner's letter. By this time, he had
already abandoned petitioner and their children. In October 1992, petitioner learned that private
respondent left for the Middle East. Since then, private respondent's whereabouts had been unknown.

On April 10, 1993, the trial court rendered a decision dismissing the petition for annulment of marriage
filed by petitioner.
Petitioner appealed to the Court of Appeals rendered its decision affirming the decision of the trial court

Issues:

whether or not the marriage of petitioner and private respondent should be annulled on the ground of
private respondent's psychological incapacity.

Ruling:

"Psychological incapacity" should refer to no less than a mental (not physical) incapacity that causes a
party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code,
include their mutual obligations to live together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and significance to the marriage. This psychological
condition must exist at the time the marriage is celebrated. The law does not evidently envision upon
the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is
implicit under Article 54 of the Family Code which considers children conceived prior to the judicial
declaration of nullity of the void marriage to be "legitimate."

In the instant case, other than her self-serving declarations, petitioner failed to establish the fact that at
the time they were married, private respondent was suffering from a psychological defect which in fact
deprived him of the ability to assume the essential duties of marriage and its concomitant
responsibilities.

no evidence was presented to show that private respondent was not cognizant of the basic marital
obligations. It was not sufficiently proved that private respondent was really incapable of fulfilling his
duties due to some incapacity of a psychological nature, and not merely physical.

However, private respondent's alleged habitual alcoholism, sexual infidelity or perversion, and
abandonment do not by themselves constitute grounds for finding that he is suffering from a
psychological incapacity within the contemplation of the Family Code.

It must be shown that these acts are manifestations of a disordered personality which make private
respondent completely unable to discharge the essential obligations of the marital state, and not merely
due to private respondent's youth and self-conscious feeling of being handsome, as the appellate court
held.
Moreover, expert testimony should have been presented to establish the precise cause of private
respondent's psychological incapacity, if any, in order to show that it existed at the inception of the
marriage. The burden of proof to show the nullity of the marriage rests upon petitioner.

Procedure:
Rule on Legal Separation, A.M. No. 02-11-11-SC, March 4, 2003

- https://lawphil.net/courts/supreme/am/am_02-11-11-sc_2003.html

Tuason vs. Court of Appeals

G.R. No. 116607

April 10, 1996

Facts:

Private respondent Maria Victoria Tuason was married to petitioner Emilio Tuason on June 3, 1972 and
had two children. However, at the time of the marriage, Emilio manifested psychological incapacity to
comply with his Related imagemarital obligations and resulted to violent fights between husband and
wife. Due to the series of physical abuse against the respondent, the petitioner’s use of prohibited
drugs, cohabiting with three women, leaving the conjugal home and giving minimal child support, abuse
of conjugal property use and incurring of bank debts without the respondent’s consent, she filed a
petition for annulment or declaration of nullity of their marriage in 1989 before the RTC Makati on the
ground of psychological incapacity and prayed for powers of administration to save conjugal properties
from further dissipation.

Emilio filed his Opposition to private respondent’s petition for appointment as administratix of the
conjugal properties of gains on April 18, 1990. The trial court scheduled the reception of petitioner’s
evidence on May 11, 1990. A counsel for petitioner moved for a postponement on the ground that the
principal counsel was out of the country and due to return on the first week of June, thus granted the
motion and reset the hearing to June 8, 1990.

However, on June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the court
declared petitioner to have waived his right to present evidence and deemed the case submitted for
decision on the basis of the evidence presented.

On June 29, 1990, the trial court rendered judgment declaring the nullity of private respondent’s
marriage to petitioner and awarding custody of the children to private respondent.
Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal was taken from
the decision.

On September 24, 1990, private respondent filed a “Motion for Dissolution of Conjugal Partnership of
Gains and Adjudication to Plaintiff of the Conjugal Properties” and was opposed by the petitioner on
October 17, 1990.

Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the trial court a
petition for relief from judgment of the June 29, 1990 decision. The trial court denied the petition on
August 8, 1991 which was affirmed by the Court of Appeals on July 1994. Hence, this petition for review
on certiorari.

Issue:

Whether or not that in the absence of the petitioner in the hearing, the court should have ordered a
prosecuting officer to intervene under Article 48 of the Family Code.

Ruling:

In the case at bar, the decision annulling petitioner’s marriage to private respondent had already
become final and executory when petitioner failed to appeal during the reglementary period. Petitioner
however claimed that the decision of the trial court was null and void for violation of his right to due
process. He contended that he was denied due process when, after failing to appear on two scheduled
hearings, the trial court deemed him to have waived his right to present evidence and rendered
judgment on the basis of the evidence for private respondent. Petitioner justified his absence at the
hearings on the ground that he was then “confined for medical and/or rehabilitation reason.”

Petitioner also insisted that he had a valid and meritorious defense. He cited Article 48 of the Family
Code which provides that in actions for annulment of marriage or legal separation, the prosecuting
officer should intervene for the state because the law “looks with disfavor upon the haphazard
declaration of annulment of marriages by default.” He contended that when he failed to appear at the
scheduled hearings, the trial court should have ordered the prosecuting officer to intervene for the state
and inquire as to the reason for his non-appearance.

However, the failure of the counsel to inform petitioner of adverse judgment to enable him to appeal is
an inexcusable negligence and not a ground for setting aside a judgment valid and regular on its face.
Similarly inexcusable is the counsel’s failure to notify the court of petitioner’s confinement. Petitioner
cannot claim he was deprived of due process by the Court.

DEFENSES:
Arroyo vs. Court of Appeals

G.R. No. 96602

November 19, 1991

Facts:

Dr. Jorge Neri filed a criminal complaint against his wife, Ruby Vera Neri, and Eduardo Arroyo for
adultery. In November 1982, Ruby went to Baguio with Mrs. Sare and witness Jabunan. They stayed at
the Neri spouses’ Mines View Park Condominium. Arroyo arrived at 7:00 p.m. at the condominium.
Jabunan said he opened the door for Arroyo and knocked on Ruby Neri’s door. Ruby then asked Mrs.
Sare, who was in the room with her, to leave her and Arroyo alone. The two were left alone in the room
and went out 45 minutes later. In December 1982, Dr. Neri then found incriminating pictures of his wife
and Arroyo in bed. When questioned by her husband, Ruby admitted that she and Arroyo slept together
in Baguio.

On August 26, 1991, Dr. Neri filed a manifestation, praying that the case against his wife and Arroyo be
dismissed because he had tacitly consented to his wife’s infidelity. Ruby moved for reconsideration,
contending that pardon had been extended by her husband and that Dr. Jorge Neri had married another
woman with whom he is cohabiting. Both Arroyo and Ruby Neri filed their respective motions praying
for the dismissal of their cases based on Dr. Neri’s manifestation.

Arroyo and Ruby used Dr. Neri’s affidavit to cast doubts on the doctor’s credibility as witness.

Issues:

1. Is Dr. Neri’s affidavit of desistance sufficient to cast reasonable doubts on his credibility?

2. Had Mrs. Neri’s constitutional right against self-incrimination been violated?

3. Does Dr. Neri’s alleged extra-marital affair preclude him from filing the criminal complaint on the
ground of pari delicto?

4. Is Dr. Neri’s manifestation a sufficient basis for granting a new trial?

Ruling:

1. No. It has been the Court’s constant holding that in certiorari proceedings, the findings of fact of the
lower court as well as its conclusions on the credibility of witnesses are generally not disturbed.

2. No. As held in Gamboa v. Cruz, “the right to counsel attaches upon the start of an investigation, i.e.,
when the investigating officer starts to ask questions to elicit information and/or confession or
admissions from respondent-accused.” Because Dr. Neri is not an investigating officer, Mrs. Neri’s
confession to her husband could not be rejected by the court. As held in Aballe v. People,

“The declaration of an accused expressly acknowledging his guilt of the offense may be given in
evidence against him. The rule is that any person, otherwise competent as witness, who heard the
confession, is competent to testify as to substance of what he heard if he heard and understood all of
it.”

3. No. The concept of pari delicto is not found in the Revised Penal Code but only in Article 1411 of the
Civil Code. Furthermore, the said article relates only to contracts with illegal consideration. The case at
bar does not involved any illegal contract.

4. No. Dr. Neri’s manifestation amounts in effect to an attempted recantation of testimony given by him
before the trial court. It is settled that not all recantations by witnesses should result in the granting of a
new trial.

Liquidation:
Art. 63 (2), Family Code

-Art. 63. The decree of legal separation shall have the following effects:

-(2) The absolute community or the conjugal partnership shall be dissolved and liquidated
but the offending spouse shall have no right to any share of the net profits earned by the
absolute community or the conjugal partnership, which shall be forfeited in accordance with
the provisions of Article 43(2)
Bañez vs. Bañez

G.R. Nos. 132592 & 133628

January 23, 2002

Facts:

1. A decision granting legal separation to Aida and Gabriel Bañez was subsequently followed by amotion
to modify the decision (by Aida) and a notice of appeal by (Gabriel).2. In the original decision, Aida was
granted, among other things, possession of a residential unitand a vehicle. The motion to modify the
decision was partly granted (commitment of fees,execution pending appeal granted but moral damages
denied) but when it was questioned in the

CA, the trial court’s orders were set aside. Aida appealed to the SC.

3. Meanwhile the notice of appeal given by Gabriel was granted by the CA. With this decision, Aidaalso
appealed to the SC. Both appeals were consolidated as one petition in the SC.4.

Though she no longer questions the CA’s decision of the vehicle after Gabriel repossessed it: as to the
residential house, Aida claims that it being conjugal in nature, justice requires that she andher children
be allowed to occupy it since during the proceedings before the trial court, she wasdid not have a
chance to stay there. She contends that an action for legal separation is one where multiple appeals are
allowed and thus Gabriel’s appeal should have been dismissed for his failure to file the record on appeal
with the reglementary period.

Issue:

Weather or Not an action of legal separation is one where multiple appeals are allowed.

Ruling:

In Roman Catholic Archbishop of Manila v. Court of Appeals, 258 SCRA 186, 194 (1996), this Court held:

Multiple appeals are allowed in special proceedings, in actions for recovery of property withaccounting,
in actions for partition of property with accounting, in the special civil actions ofeminent domain and
foreclosure of mortgage. The rationale behind allowing more than oneappeal in the same case is to
enable the rest of the case to proceed in the event that a separateand distinct issue is resolved by the
court and held to be final.In said case, the two issues raised by therein petitioner that may allegedly be
the subject of multipleappeals arose from the same cause of action, and the subject matter pertains to
the same lessor-lesseerelationship between the parties. Hence, splitting the appeals in that case would
only be violative of therule against multiplicity of appeals.The same holds true in an action for legal
separation. The issues involved in the case will necessarilyrelate to the same marital relationship
between the parties.
The effects of legal separation, such asentitlement to live separately, dissolution and liquidation of the
absolute community or conjugalpartnership, and custody of the minor children, follow from the decree
of legal separation. Theyare not separate or distinct matters that may be resolved by the court and
become final prior to orapart from the decree of legal separation. Rather, they are mere incidents of
legal separation.Thus, they may not be subject to multiple appeals.