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.