Sunday, January 14, 2007

Family Code of the Philippines: Primer on legal separation

Men and women in troubled marriages have a variety of options under the Family Code in ending their relationship. At the very least, spouses can ask the courts for the judicial separation of their property as provided for in Articles 134 up to 142. Under this option, the conjugal property is liquidated and each spouse gets his or her own respective share. But the marital ties still remain. At the opposite end of the spectrum of legal options is “declaration of nullity of the marriage” with Article 36 of the Family Code as the most commonly used justification. The conjugal property is also liquidated, and more importantly, the spouses are free to marry other persons.

The Family Code, under Articles 55 to 67, also provides for “legal separation” where the conjugal property is liquidated, and the spouses are free to live independently of each other but without the right to marry other persons since the marriage ties are still binding.

What are the grounds for legal separation?

[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.

The term "child" shall include a child by nature or by adoption.

Under what circumstances may the petition for legal separation be denied?

The petition may 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 decree of legal separation; or

[6] Where the action is barred by prescription.

When should the petition for legal separation be filed?

An action for legal separation shall be filed within five years from the time of the occurrence of the cause.

What is the so-called “cooling-off period”?

An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition.

What are the duties of the Family Court in petitions for legal separation?

[1] 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.

[2] No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. 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.

What happens when the petition is filed?

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

[2] 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.

[3] During the pendency of the action for 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.

What does Article 49 provide for?

Article 49 of the Family Code states, “During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the other parent.”

What are the effects if the court grants the petition for legal separation?

[1] The spouses shall be entitled to live separately from each other, but the marriage bonds 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 the Family 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 made in the will of the innocent spouse shall be revoked by operation of law.

What about the donations made by the spouses to each other?

The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured.

The action to revoke the donation must be brought within five years from the time the decree of legal separation has become final.

What if there is reconciliation between the spouses while the petition is being heard by the court?

[1] 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.

[2] The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and

[3] The final decree of legal separation shall be set aside, but 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. The court's order containing the foregoing shall be recorded in the proper civil registries.

What protection, if any, is provided for the creditors of the spouses?

Article 67 provides that the agreement to revive the former property regime shall be executed under oath and shall specify:

[1] The properties to be contributed anew to the restored regime;

[2] Those to be retained as separated properties of each spouse; and

[3] The names of all their known creditors, their addresses and the amounts owing to each.

The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties.

The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim.

26 comments :

Sofia said...

Hi Atty .

hope you are well.

I know this maybe a silly question,but still going to ask it.

1.) would like to ask if a person could still be charged guilty of adultery by our courts despite that person was already declared legally separated by court ?

Atty. Gerry T. Galacio said...

Sofia,

Please read my post titled “Adultery, concubinage and psychological violence” (look for the link in the sidebar). Adultery is a crime committed by the WIFE and the paramour. The husband therefore cannot be charged with adultery; the crimes against a philandering husband can be concubinage or psychological violence.

In legal separation, the marriage ties are not terminated. The man and woman are still husband and wife. The Revised Penal Code provides in Article 333 that the crime of adultery can be committed by the wife “even if the marriage be subsequently declared void.”

Anonymous said...

hi atty, im chelle.

i would like to ask, if one of the requirements for the wedding has been falcificated for example the baptismal certificate because the guy is not a catholic and this will be proven truth will the wedding be void?... and what other consequences will they face regarding this matter?

Atty. Gerry T. Galacio said...

The marriage is NOT void simply because the baptismal certificate was falsified. For a marriage to be valid, it must comply with the essential and formal requisites of marriage (Articles 3 and 4 of the Family Code). The baptismal certificate is not a requisite.

Anonymous said...

hi,

i'd like to ask sir if my secret marriage to my ex-bf(lance) is valid?we did the secret marriage 2 days before he left for abroad, we promised to have a church wedding when he get back. 3 years after, he came back, he admitted to me that he went directly to her gf in one province, he was there for two weeks before he showed himself to me. So we got separated but not yet annulled(from the start we never live in one house, we never got the chance). 1 yr later i got pregnant by my new bf(romeo), during my first month, i told him about the secret marriage. and he left me and the child immediately. my second question is about my baby's dad(romeo) "can our child get support from him?"but he is not willing to cooperate. whats should i do?? and last if in case my marriage with my ex-bf was valid, how much would it cost us to annul it??

sorry but i am so fool and so ignorant. all i knew and believe is that secret marriage is just secret and will never be valid. so me and lance keep it really secret until he went back home. so, i used single status at work.

-lost soul

Atty. Gerry T. Galacio said...

lost soul,

1. You have to obtain and verify with the Local Civil Registrar and the NSO the documents regarding that secret marriage. Did you use an Article 34 affidavit instead of a marriage license? While a marriage certificate or contract is not an essential or formal requisite of marriage, the existence of such a document on the LCR or NSO files is proof of the existence or of the validity of the marriage. One ground that can be used to invalidate your marriage is that the requirements of Article 34 of the Family Code were not complied with.

Once you get copies of documents relating to that secret marriage, show it to a lawyer who can advise you on what legal remedies you have. You can try asking for help from the Integrated Bar of the Philippines (IBP) chapter offices in your town or city. The IBP chapter offices are usually located in the Hall of Justice. Besides the IBP, you can also try to ask for help from the OLA (Office of Legal Aid) of the UP College of Law in Diliman, Quezon City. The San Beda College of Law in Mendiola, Manila also has a free legal clinic.
However, even if it turns out that your marriage is void, you cannot take the law into your own hands and declare by yourself that your marriage is void. Under Article 40 of the Family Code you should file a petition to have your marriage declared as void.

2. As to asking support from Romeo, please read my post “Support for abandoned woman and family” (look for the links in the sidebar; read also the comments and my replies to the comments).

yrg007 said...

a woman had an affair with a married man and got pregnant (with the same man). can she force him to give his last name to the child she's bearing? or can the married man refuse to give his last name to the child? pls help. thanks!

Atty. Gerry T. Galacio said...

yrg007,

Please read my post “What surname should illegitimate children use?” (look for the link in the sidebar).

The woman can file a petition against the man for compulsory recognition of the child for issues of financial support and inheritance under Article 176 of the Family Code. But while the man can be compelled by the courts to recognize the child as his illegitimate child and to give financial support, he cannot be forced to allow the use of his surname for the child.

Anonymous said...

hi atty.

This is lost soul. Thank you po sa pagsagot niyo sa unang tanong ko.nalinawan po ako.hindi ko na hinabol si romeo sa supporta niya kay baby(kahit ka officemate ko lang siya)and he's enjoying his life now with other girl here in the office lang din.follow-up question lang po. ang pinadala kong lastname ng baby ko ay last name ko sa pagkadalaga(since hindi ako nagbago ng lastname and status ) at middle name ay middle name ko din(surname ng mother ko sa pagkadlaga. mali po ba un?? ano po ang tama? at ano po ang dapat kong gawin?ang gusto ng hrd sa work ko ay isunod ko ung lastname ng baby sa name ni lance.baka si lance naman po ang magsampa sa akin ng kaso pag ginawa ko yun.naguguluhan po ako..ano ano po ang mga consequences ng lahat ng ngyari sa akin??

ano po ng tama at dapat kong gawin..??


lost soul...

Atty. Gerry T. Galacio said...

lost soul,

[1] You are in a legal mess.

But the HRD of your company is correct. Since you are legally married to Lance, the baby’s name should his surname. Please read my post “If a wife gets pregnant by a man not her husband, will the child be legitimate or illegitimate?” (look for the link in the sidebar). As I discussed in the post, a child born during the marriage is presumed legitimate. The birth certificate should therefore carry the (legal) father’s surname, not the mother’s maiden surname or the biological father’s surname. Lance, however, should file a petition in court questioning the legitimacy of the child.

[2] When it comes to illegitimate children, the rule is that if the child is not acknowledged by the father, then the surname is that of the mother. The entry for middle name is left blank, as the Supreme Court ruled in “Republic of the Philippines vs. Trinidad R.A. Capote”, G.R. No. 157043, February 2, 2007, 514 SCRA 76.”

As of now, since your child is using your middle name and surname, it appears that you are siblings (“magkapatid”), not mother and child.

Anonymous said...

Good day Atty.

I would like to ask, I'm working in other country for almost 2 years, and I want to be separated to my husband because he betrayed my family and now I have heard bring other woman in our home, and my daughter is in his custody, he's showing to her all the immorality.

Atty. what I can do? How I can get my daughter to him in fast way? I like also after I'll get my daughter, he will not have any rights to go near or see her, forever.

Please give me advice what the best I can do.

Lady M

Atty. Gerry T. Galacio said...

Lady M,

You have to file a petition to terminate your husband’s parental authority over your daughter. You can at the same time try to ask the court to issue a Protection Order under RA 9262 called a “stay away” order. Please read my RA 9262 posts (look for the links in the sidebar).

Anonymous said...

Good day Atty.

Thank you for your immediate answer.

I will email to you some of my other question, hope you will reply.

Thank you. God bless.

Lady M

Anonymous said...

Good day Atty.

You haven't answered my emails, as you said you prioritize the emails.

Please answer.

Thank you.

Lady M

Atty. Gerry T. Galacio said...

Lady M,

There’s no “Lady M” who has e-mailed me. If your e-mail address has the numbers “1974” among other characters, I have only received only one e-mail from you. That e-mail was dated November 10 and I answered it November 12.

Anonymous said...

hi,, just want to ask something. coz my husband file an annulment already last nov 2007 but until now no news about it.. is it possible that i can use my surname already wen i was single? or do still need 2 make affidavit to the lawyer so i can use my surname? tnx..

Atty. Gerry T. Galacio said...

Until and unless your marriage has been declared null and void, you have to continue using your married surname.

Anonymous said...

hi, atty.
me and my husband separated for almost 3 yrs now because he is a womanizer and now his live-in partner is pregnant. is this a ground for legal separation? we only live together for almost 2 years lang dhil s bisyo nya. we have 2 kids na nsa akin at simula pa lang di na sya nagsustento. Gusto q sana mawala mpa walang bisa n ang kasal namin. di ko lang po alam kung san ako magsisimula. kapag po ba 8 years n kami magkahiwalay void na nag kasal namin?
hoping for your response..
thank you.
- SINGLE MOM

Anonymous said...

follow up info lang po atty. wala naman po kami conjugal property na paghahatian. Kung sa ngayon po na di ko pa po makaya magpa annulla kahit po sana legal separation na lang kaya lang po di ko po alam kung panu po sisimulan sa palagay ko naman po payag naman sya sa legal separation tutal naman magkakaanak na sila na ka live in nya.
thank you.

Atty. Gerry T. Galacio said...

Single Mom,

[1] Legal separation does NOT sever or terminate the marriage ties. Even if the court grants your petition for legal separation, you will still be legally married to your husband.

[2] The absence or lack of communication for a number of years between the spouses does NOT make the marriage void. Please read my post "If husband and wife have not seen each other for more than seven years, does it mean that their marriage is already void?" (look for the link in the sidebar)

Anonymous said...

Good Day Atty,

Ask ko lang po sana kung ano po gagain ko sa ex bf ko po kasi po nagpa secret marriage kami nung Jan.31,2009 po halos lahat po ng mga papel namin inayos lang po nung taga munisipyo din po nagtatrabaho binayaran lang po namin sya ng 3,500 pero dinaya lang po namin ung pirma ng mga magulang namin I was 24 years old that time pareho po kami.Nalaman ko lang din po last year na may anak sya at nanganak nung May 2009 po at don po sya natutulog minsan sa bahay nung ex nya hindi pa po kami nagsasama sa isang bahay.Pag nag-aaway po kami lagi nya ko sinasaktan physically kaya nagkakapasa po ako pinapahiya nya din po ako sa harap ng madami tao at pinapakita ang pananakit nya.Tanong ko lang po kung valid po ba ung kasal namin kahit di kami umattend ng mga seminar at walang certificate galing po sa MSWD,Health Center for Family Planning na mga requirements po sa kasal at wala po pirman ng magulang namin para sa consent nila?Ano po ba gagwin ko kung sakali valid po un gusto ko na po makipaghiwalay sa kanya?Nalaman ko din po nagkaron din sya ng affair sa mga gay na naging prof ko at pati sa boss nya kaya gusto ko na din po makipaghiwalay.Tulungan nyo po ako.thank you po...

Atty. Gerry T. Galacio said...

[1] Parental consent is needed only by those who get married between 18 to 21. You were 24 when you got married.

Even if your marriage is void, you cannot take the law into your own hands and declare by yourself that your marriage is void. Under Article 40 of the Family Code you are required to file a petition to have your marriage declared null and void.

You can try to file a petition for declaration of the nullity of your marriage under Article 36 of the Family Code.

[2] To prevent your husband from hurting you, ask for help from the following government offices or agencies. The addresses are for Metro Manila but you can try to contact their regional offices (specially the NBI).

Department of Social Welfare and Development (DSWD) Crisis Intervention Unit (CIU) Rehabilitation Unit Tel. No.: (02) 734-8635 NCR Ugnayang Pag-asa, Legarda, Manila Tel. Nos.: (02) 734-8617 to 18

Philippine National Police (PNP) Women and Children’s Concern Division (WCCD) Tel. No.: (02) 723-0401 loc. 3480 Call or text 117 (PATROL 117)

National Bureau of Investigation (NBI) Violence Against Women and Children’s Desk (VAWCD) Tel. Nos.: (02) 523-8231 loc. 3403

DOJ Public Attorney’s Office Women's Desk, Tel. Nos.: (02) 929-9010; 929-9436 to 37

Philippine General Hospital (PGH) Women’s Desk Tel. Nos.: (02) 524-2990; 521-8450 loc. 3816

Women’s Crisis Center Women and Children Crisis Care & Protection Unit – East Avenue Medical Center (WCCCPU-EAMC) Tel. Nos.: (02) 926-7744; 922-5235

johna fe said...

hello... atty. gerry..
i need answers with this... hope u will answer it soonest

WHAT IS THE PREVAILING RULLING ON COHABITATION UNDER ARTICLE 34 OF THE NEW FAMILY CODE OF THE PHILIPPINES?

second, IS IT RECKONED FROM THE TIME PARTIES REACH THE AGE OF 18 OR FROM THE TIME OF CELEBRATION OF MARRIAGE RECKONED BACKWARDS?

hope to hear u so soon...
i emailed u last friday...
GOD BLESS, Atty. Gerry


JOHNA-oroquieta city, mindanao

Atty. Gerry T. Galacio said...

Johna,

I already answered your e-mail but there seems to be some misunderstanding, either of your understanding or the Ninal case, OR my understanding of your questions. It will be helpful if you can provide me with the factual circumstances of your question.

Article 76 of the NCC states:

No marriage license shall be necessary when a man and a woman who have attained the age of majority and who, being unmarried, have lived together as husband and wife for at least five years, desire to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The official, priest or minister who solemnized the marriage shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that he found no legal impediment to the marriage.

The equivalent provision under the Family Code is Article 34:

No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties are found no legal impediment to the marriage.

"Is it reckoned from the time parties reach the age of 18 or from the time of celebration of marriage reckoned backwards?"

The youngest age a person has to be in order to avail of Article 34 FC is 23. This is because the five year continuous relationship reckoned backwards would be 18. The FC provides a minimum marrying age of 18. If the person is 22, he (she) cannot avail of Article 34 since this would mean that the five year continuous relationship began at age 17. There is therefore a legal impediment, specifically minority (being below 18, the minimum age for marriage).

Anonymous said...

Please advice...my husband does not want to leave my parent's home even if I ask him for separation. We've been married for 15 years, he does not want to work so I am the sole provider of the family. He has a drinking habit -- he never physically hurt me but I suffered from verbal abuse/insults whenever he's drunk. My child wants a break coz his father makes him feel stupid whenever he commits even a petty mistake. How can I force him to leave us? Do I have grounds for annulment? if not, legal separation?

thanks

Atty. Gerry T. Galacio said...

Please read my posts on RA 9262 (look for the links in the sidebar) especially the post on Protection Orders. Under what is called “exclusion order” the court can order your husband to leave the house. Under a “stay away” order, the court will order your husband to stay away from you and your child, other designated family members and from places you frequent (like school, office, etc).

In the sidebar, you can find the contact numbers of government offices and agencies you can ask help from.