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D. Legal Separation

1. Grounds

a. GROUNDS FOR LEGAL SEPARATION

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. (Article 55, Family Code)

Tthe term “child” shall include a child by nature or by adoption. (Paragraph 2, Article 55, Ibid.)

b. PRESCRIPTION

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

2. Defenses

a. GROUNDS FOR DENIAL

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 decree of legal separation; or

6) Where the action is barred by prescription. (Article 56, Ibid.)

3. Procedure

a. 6-MONTH 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. (Article 58, Ibid.)

4. Effects of filing petition

a. 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.(Article 59, Ibid.)

b. NO COLLUSSION

No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. (Article 60, Ibid.)

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. (Paragraph 2, Article 60, Ibid.)

c. SEPARATE LIVING UPON FILING OF PETITION

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

d. ADMINISTRATOR

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.(Paragraph 2, Article 61, Ibid.)

5. Effects of pendency

a. SUPPORT PENDENTE LITE

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. (Article 62, Ibid.)

Cross-referenced article

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 to in Title IX [on Parental Authority]. It shall also provide for appropriate visitation rights of the other parent. (Article 49, Ibid.0

6. Effects of decree of legal separation

a. IN GENERAL

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 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 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 made in the will of the innocent spouse shall be revoked by operation of law. (Article 63, Ibid.)

b. REVOCATION OF DONATIONS

After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. (Article 64, Ibid.)

1) Prescription

The action to revoke the donation must be brought within five years from the time the decree of legal separation become final. (Paragraph 2, Article 64, Ibid.)

c. ALIENATIONS, LIENS, ENCUMBRANCES, IN GOOD FAITH

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. (Article 64, Ibid.)

7. Reconciliation

a. JOINT MANIFESTATION

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. (Article 65, Ibid.)

b. EFFECTS OF RECONCILIATION

The reconciliation referred to in the preceding Articles shall have the following consequences:

1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and

2) 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. (Article 66, Ibid.)

c. RECORDING WITH CIVIL REGISTRY

The court’s order containing the foregoing shall be recorded in the proper civil registries. (Paragraph 2, Article 66, Ibid.)

d. AGREEMENT TO REVIVE FORMER PROPERTY REGIME

The agreement to revive the former property regime referred to in the preceding Article 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. (Article 67, Ibid.)

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. (Paragraph 2, Article 67, Ibid.)

8. Effect of death of one of the parties

a. DEATH OF ACTION FOR LEGAL SEPARATION ITSELF

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. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. 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. (Sy v. Eufemio, G.R. No. L-30977, 31 January 1972)

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