TITLE II - LEGAL SEPARATION

Article 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 judgement 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. (97a)

LEGAL SEPARATION. A decree of legal separation or relative divorce does not affect the
marital status, there being no severance of the vinculum (Laperal v. Republic, 6 SCRA 357).
It does not dissolve the marriage. involves nothing more than bed-and-board separation
(a mensa et thoro) of the spouses (Lapuz v. Eufemio, 43 SCRA 177). Relative Divorce

Where the marriage is dissolved and the parties are free to marry again, the divorce is said
to be absolute. On the other hand, where the marital relation is only suspended, so that the
spouses are not free to re- marry any other persons, the divorce is a relative one, being
generally referred to as a legal separation.

Bigamy is the act of illegally contracting a second marriage despite full knowledge that the
first marriage is still validly existing or without obtaining the needed judicial declaration of
presumptive death of the first spouse who was absent for four or two consecutive years
pursuant to Article 41 of the Family Code.

However, if the bigamous marriage were committed abroad, the guilty party cannot be
criminally prosecuted for bigamy in the Philippines as our penal statutes are territorial in
nature. (Article 14, NCC)

Concubinage is done in any of the following manner, to wit:

(a) maintaining a mistress in the conjugal dwelling;
(b) sexual intercourse with another woman under scandalous circumstances; and
(c) cohabiting with her in any other place.

Condonation is tantamount to Consent!

A spouse is deemed to have abandoned the other when he or she has left the conjugal
dwelling without intention of returning. The spouse who 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 (Articles 101 and 128 of the Family Code)

Article 56. The petition for legal separation shall be denied on any of the following
grounds:

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 the decree of legal
separation; or

6) Where the action is barred by prescription. (100a)

Article 57. An action for legal separation shall be filed within five years from the time
of the occurrence of the cause. (102a)

Condonation is the act of forgiving the offense after its commission. However, it has been
held that condonation implies a condition of future good behavior by the offending spouse.
Condonation of the violation of the marital duties and obligations being conditional on the
future good conduct of the offending spouse, subsequent offense on his or her part
revokes or nullifies the condonation and revives the original offense (Ann. Cas. 1918A
657 note; Brown v. Brown, 103 Kan. 53, 172 Pac. 1005, LRA 1918F 1033 and note).

CONSENT. There is consent when either of the spouses agreed to or did not object,
despite full knowledge, to the act giving rise to a ground for legal separation, before such act
was in fact committed. (People v. Schneckenburger, 73 Phil. 413; People v. Guinucud, 58
Phil. 621)

Consent may be deduced also from the acts of the spouses (People v. Sensano, 58 Phil.
73)

CONNIVANCE (corrupt consenting), or procurement, denotes direction, influence,

personal exertion, or other action with knowledge and belief that such action would produce
certain results and which results are produced (Greene v. Greene)

“The basis of the defense of connivance is the maxim ‘volenti non fit injuria,’ or that one is
not legally injured if he has consented to the act complained of or was willing that it
should occur. It is also said that the basis of the defense of connivance is the doctrine of
unclean hand”

“When a husband lays a lure for his wife, either acting in person or through an agent, his will
necessarily concurs in her act’’ (Witherspoon v. Witherspoon, 108 Pa. Super. 309, 64 A.
842, 84e).

RECRIMINATION OR EQUAL GUILT. The reason for this rule lies in the equitable maxim
that he who comes into equity must come with clean hands.

When two persons acted in bad faith, they should be considered as having acted in good
faith. They are in pari delicto.

Collusion is a corrupt agreement, while connivance is a corrupt consenting. To constitute

collusion there must be an agreement between husband and wife looking to the
procuring of a divorce.

Collusion in divorce or legal separation means the agreement “* * * between husband and
wife for one of them to commit, or to appear to commit, or to be represented in court as
having committed a matrimonial offense, or to suppress evidence of a valid defense, for the
purpose of enabling the other to obtain a divorce. This agreement, if not express, may be
implied from the acts of the parties. It is a ground for denying divorce” (Griffith v. Griffith, 69
N.J. Eq. 689, 60 Atl. 1099; Sandoz v. Sandoz, 107 Ore. 282, 214 Pas. 590).

PRESCRIPTION. An action for legal separation must be filed within five years from the
occurrence of the cause. After the lapse of the five-year period, the legal separation case
cannot be filed. The time of discovery of the ground for legal separation is not material in
counting the prescriptive period.
Article 58. An action for legal separation shall in no case be tried before six months
shall have elapsed since the filing of the petition. (103a)

Article 59. 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. (n)

Article 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgement.

In any case, the court shall order the prosecuting attorney or fiscal assigned to it to
take steps to prevent collusion between the parties and to take care that the evidence
is not fabricated or suppressed. (101a)

Article 61. After the filing of the petition for legal separation, the spouses shall be
entitled to live separately from each other.

The court, in the absence of a written agreement between the spouses, shall
designate either of them or a third person to administer the absolute community or
conjugal partnership property. The administrator appointed by the court shall have
the same powers and duties as those of a guardian under the Rules of Court. (104a)

Article 62. During the pendency of the action or legal separation, the provisions of
Article 49 shall likewise apply to the support of the spouses and the custody and
support of the common children. (105a)

However, if the legal separation case were vehemently opposed and heatedly contested, it
is clear that the litigation was characterized by a no-holds barred contest and not by
collusion. Under these circumstances, the nonintervention of the prosecuting-attorney to
assure lack of collusion between the contending parties is not fatal to the validity of the
proceedings in court especially when it was not shown that evidence was suppressed or
fabricated by any of the parties. These kinds of situations do not call for the strict application
of Articles 48 and 60 of the Family Code (See Tuason v. Court of Appeals, 256 SCRA 158).

“That other remedies, whether principal or incidental, have likewise been sought in the same
action cannot dispense, nor excuse compliance, with any of the statutory requirements”
(Pacete v. Carrianga, 49 SCAD 673, 231 SCRA 321).

Proof by preponderance of evidence is required to substantiate the ground for legal

separation (Gandionco v. Peñaranda, 155 SCRA 725). In actions for legal separation, the
material facts alleged in the complaint shall always be proved (Section 1, Rule 34 of the
1997 Rules of Civil Procedure).

The civil action for legal separation based on concubinage may proceed ahead of, or
simultaneously with, a criminal action for concubinage, because said civil action is not one
“to enforce the liability arising from the offense” (See Rule 111, Section 3 of the Rules on
Criminal Procedure)

If the petition is denied, the court, however, cannot compel the parties to live with each other
as cohabitation is purely a personal act (Arroyo v. Vasquez, 42 Phil. 54).

DEATH TERMINATES LEGAL SEPARATION CASE

An action for legal separation which involves nothing more than the bed-and-board
separation of the spouses (there being no absolute divorce in this jurisdiction) is purely
personal. x x x Being personal in character, it follows that the death of one party to the
action causes the death of the action itself — actio personalis moritur cum persona.
(Lapuz v. Eufemio, 43 SCRA 177)

“. . . When one of the spouses is dead, there is no need for divorce, because the marriage
is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place
during the course of the suit x x x. The action is absolutely dead (Cass., July 27, 1871, D.
71.1.81; Cass req., May 8, 1933, D.H. 1933, 332).”

If death supervenes during the pendency of the action, no decree can be forthcoming; death
producing a more radical and definitive separation; and the expected consequential rights
and claims would necessarily remain unborn.

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

1) The spouses shall be entitled to live separately from each other, but the marriage
bond shall not be severed;

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);

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 innocent spouse shall be revoked by operation of law. (106a)