Group 3 - Legal Separation
Group 3 - Legal Separation
LEGAL SEPARATION
GROUP 3
FRIGINAL, Jehaida
GEMPIS, JR., Luch R.
GERERO, Karen A.
GERONA, Russell I.
GODOY, Ma. Socorro A.
JUNASA, Djoanivie Jomare A.
B. COMMENT:
In most cases decided by the Supreme Court, grounds (a) and (b) are commonly found by Psychiatrist/ Psychologist as
indicated in their clinical findings as manifestations of psychological incapacity which is a ground for nullity of marriage
under Art 36 of the Family Code. Likewise grounds (a), (c) (I) and (j) are also covered as violence under the VAWC law
C.RECOMMENDATION
Filing for a legal separation is much the same as filing for nullity of marriage. It entails the same expenses, time and
effort but of different results. A party has to undergo rigid presentation of evidence to be still remained married with his/her
erring spouse until the end. At any rate, custody of minor children and liquidation of conjugal assets and /or absolute
community of property are also discussed and resolved in petition for nullity of marriage. In some jurisdictions filing of
petition for legal separation is done through filling out or checking out of boxes in a template because it essentially does not
delve on the marriage tie but only on the custody of the minor children and the liquidation of assets. Upon filing of the petition,
a government counselor specifically appointed to deal on cases of legal separation would only have to make a conference
with the couple and discussed those matters. Parties will be saved with judicial litigation which sometimes take long process.
It is thus recommended that petition for LEGAL SEPARATION be removed from judicial process and that it be considered as
an administrative matter which can be resolved through administrative proceedings by a competent administrative
agency/board created specifically by law to handle cases of this nature. The filing party only has to list the grounds (same as
enumerated under Art 55 of the Family Code), the names of their minor children, assets/property if any of the spouses, for
consideration and evaluation of the agency or board.
1
Article 91, Family Code.
are presumed conjugal properties unless
the contrary is proved.2
2
Article 116, ibid.
the fruits and income derived and
earned from their separate properties are
considered part of the conjugal
partnership of gains.3
3
Article 106, ibid.
that should be forfeited but also his
entire share in the community property.
Republic Act No. 8552, otherwise In adoption, the paramount To include in the provisions of R.A. No.
known as the “Domestic Adoption consideration is the general welfare and 8552 the following:
Act of 1998” best interest of the child.
If the adopter-father, who is already a
Under Section 14 of R.A. No. 8552, the widower, will adopt his illegitimate child,
adoptee shall be registered with the the adoptee will use as his/her surname the
surname of the adopter. However, the surname of his adopter-father and will use
use of middle name is not provided. as his/her middle name the surname of
his/her biological mother.
In special cases wherein the adopter-
father, who is already a widower, would
like to adopt his illegitimate child, the
latter should be allowed to use as middle
name the surname of his/her biological
mother.
Art. 65. If the spouses should These provisions of the Family Code It is recommended that the
reconcile, a corresponding joint only apply to reconciliation of spouses provisions on reconciliation be made
manifestation under oath duly signed after the commencement of proceedings applicable to proceedings on nullity
by them shall be filed with the court for legal separation or even after the of void marriages or annulment of
in the same proceeding for legal final decree of legal separation has been voidable marriages in at least two (2)
separation. rendered. It does not apply to couples, situations:
where nullity or annulment of marriage
proceedings had been commenced, (a.) In cases of nullity of marriage on
although even in such cases, the grounds of psychological incapacity
possibility of reconciliation or and the parties reconcile while the
withdrawal of the proceedings exist. proceedings are still pending.
Even the prospect of remarriage or
entering into a non-defective marriage (b.) In all cases of nullity of void
the second time around is not a remote marriages or annulment of voidable
possibility. marriages, after the final decree had
been rendered, and the parties
contracted thereafter a valid
remarriage.
The parties will be given the duty to
file the corresponding joint
Art. 66. The reconciliation referred manifestation of the remarriage
to in the preceding Articles shall under oath duly signed by them to be
have the following consequences: filed with the court in the same
proceeding, with the same legal
(1) The legal separation proceedings, effects as herein provided.
if still pending, shall thereby be The provision of Art. 66 (1) appears to
terminated at whatever stage; and be unnecessary and superfluous. If the Omit Art. 66 (1).
proceedings are terminated, or
(2) The final decree of legal otherwise dismissed before final Instead, reconciliation as referred to
separation shall be set aside, but the judgment on whatever grounds at in these provisions should pertain to
separation of property and any whatever stage, regardless of whether reconciliation:
forfeiture of the share of the guilty the parties have reconciled or not, it
spouse already effected shall subsist, shall have no legal effect whatsoever on (a.) After a final decree of legal
unless the spouses agree to revive the marriage and the property relations separation.
their former property regime. of the spouses.
(b.) After a final decree of nullity of
The court's order containing the void marriages or annulment of
foregoing shall be recorded in the voidable marriages and the parties
proper civil registries. contracted thereafter, with all the
necessary, essential and formal
requisites, a valid remarriage.
INTRODUCTION
Family is the basic unit of society. It is inside the family wherein the values and character of a child are first developed.
Hence, a family makes a huge part of an individual and plays a major role in one’s identity. True, however, that no families
are alike. Likewise, no members of a family are similar from each other. Nonetheless, these differences make every family
and every individual special and unique.
The Filipino society gives paramount importance and value to a family. In fact, it has been a custom that a child remains
to live with his or her parents until he or she gets married. Most of the time, a child who is already married still opt to live at
close proximity from his or her parents. When parents get old, it is their child and even their grandchildren who would take
them under their wings and take care of them. In fact, the Constitution acknowledges that the family has the duty to care for
its elderly members but the State may also do so through just programs of social security. 4
The significance of a family is ingrained in the Article II, Section 12 of the 1987 Philippine Constitution which states:
4
Section 4, Article XV of 1987 Philippine Constitution.
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and
the development of moral character shall receive the support of the Government.
Further, the entire Article XV of the Constitution is dedicated to family wherein the State recognizes the Filipino family
as the foundation of the nation.5 It is also directs the State to protect the sanctity of marriage, an inviolable social institution,
which serves as the foundation of the family.6 It is also the duty of the State to defend:
1. The right of spouses to found a family in accordance with their religious convictions and the demands of
responsible parenthood;
2. The right of children to assistance, including proper care and nutrition, and special protection from all forms
of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;
3. The right of the family to a family living wage and income; and
4. The right of families or family associations to participate in the planning and implementation of policies and
programs that affect them.7
The primordial interest to preserve the sanctity of marriage and to protect the foundation of the family is the main reason
for the strict adherence to the rules as regards to nullity of marriage and legal separation.
5
Section 1, Article XV of 1987 Philippine Constitution.
6
Section 2, Article XV of 1987 Philippine Constitution.
7
Section 3, Article XV of 1987 Philippine Constitution.
The Family Code likewise provides rules on when an action for legal separation may be filed and the proceedings to
be observed therein.
Accordingly, A.M. No. 02-11-11-SC, otherwise known as the Rule on Legal Separation, also took effect on March 15,
2003 which laid down the procedural rules that would govern petitions for legal separation under the Family Code of the
Philippines. The Rules of Court, however, shall apply suppletorily.
The Rule on Legal Separation is composed of 25 Sections. Among these sections is Section 6 with respect to the
Investigation Report of the Public Prosecutor. This provision, in my opinion, requires a deeper analysis and improvement.
ABSENCE OF DECLARATION OF
PARTY IN DEFAULT
8
Section 3(a), Rule 9 of the Rules of Court.
9
Momarco Import Company, Inc. v. Villamena, G.R. No. 192477, July 27, 2016.
10
24 Phil. 446, 449-450 (1913).
serious consequences necessitates a
careful examination of the grounds
upon which the defendant asks that it
be set aside.
11
Mocorro, Jr. v. Ramirez, G.R. No. 178366, July 28, 2008, 560 SCRA 362, 372-373.
law.12 The doctrine of finality of
judgment is pursuant to public policy and
sound practice that at the risk of
occasional errors, the judgment of
adjudicating bodies must become final
and executory on some definite date
fixed by law.13
INVESTIGATION REPORT OF
THE PUBLIC PROSECUTOR
IF THERE IS PRESENCE OF
COLLUSION
16
Tuason v. Court of Appeals, G.R. No. 116607, [April 10, 1996], 326 PHIL 169-182.
17
Ibid.
deprivation of liberty. It includes, but is not
At the outset, Article 55 of Executive limited to, the following acts: (a) physical
Order (E.O.) No. 209, otherwise known violence; (b) sexual violence; (c)
as “The Family Code of the Philippines”, psychological violence; and (d) economic
enumerated the grounds when a petition abuse.
for legal separation may be filed, to wit:
Physical violence refers to acts that
Art. 55. A petition for legal include bodily or physical harm.18 On the
separation may be filed on any of the other hand, psychological violence refers to
following grounds: acts or omissions causing or likely to cause
mental or emotional suffering of the victim
(1) Repeated physical violence or such as but not limited to intimidation,
grossly abusive conduct directed harassment, stalking, damage to property,
against the petitioner, a common public ridicule or humiliation, repeated
child, or a child of the petitioner; verbal abuse and marital infidelity. It
(2) Physical violence or moral includes causing or allowing the victim to
pressure to compel the petitioner to witness the physical, sexual or psychological
change religious or political abuse of a member of the family to which the
affiliation; victim belongs, or to witness pornography in
(3) Attempt of respondent to corrupt any form or to witness abusive injury to pets
or induce the petitioner, a common or to unlawful or unwanted deprivation of the
child, or a child of the petitioner, to right to custody and/or visitation of common
engage in prostitution, or connivance children.19
in such corruption or inducement;
18
Section 3(a) (A), R.A. No. 9262.
19
Section 3(a) (C), R.A. No. 9262.
(4) Final judgment sentencing the Sexual violence, on one hand, refers to an
respondent to imprisonment of more act which is sexual in nature, committed
than six years, even if pardoned; against a woman or her child.20 It includes,
(5) Drug addiction or habitual but is not limited to:
alcoholism of the respondent;
(6) Lesbianism or homosexuality of a) Rape, sexual harassment, acts of
the respondent; lasciviousness, treating a woman or her
(7) Contracting by the respondent of child as a sex object, making demeaning
a subsequent bigamous marriage, and sexually suggestive remarks,
whether in the Philippines or abroad; physically attacking the sexual parts of the
(8) Sexual infidelity or perversion; victim's body, forcing her/him to watch
(9) Attempt by the respondent obscene publications and indecent shows
against the life of the petitioner; or or forcing the woman or her child to do
(10) Abandonment of petitioner by indecent acts and/or make films thereof,
respondent without justifiable cause forcing the wife and mistress/lover to live
for more than one year. in the conjugal home or sleep together in
the same room with the abuser;
Among the grounds laid down for
legal separation, the writer suggests that b) Acts causing or attempting to cause the
an investigation report of the public victim to engage in any sexual activity by
prosecutor is not necessary when the force, threat of force, physical or other
ground raised in the petition is harm or threat of physical or other harm or
abandonment of petitioner by respondent coercion;
without justifiable cause for more than
one year. In case of abandonment as a c) Prostituting the woman or child.21
20
Section 3(a) (B), R.A. No. 9262.
21
Ibid.
ground for legal separation, a report on
whether there is collusion is nearly Guided by the abovementioned
impossible to be obtained. This is definition, it is apparently clear that Articles
certainly true in cases wherein 55(1), (2) and (3) are acts of violence against
respondent can no longer be located or women, in case the petitioner spouse is the
failed to appear despite service of wife, and children as defined under R.A. No.
summons. It is therefore not surprising 9262.
that an investigation report would only
reflect the side of the petitioner. Not only are Article 55(1) and (3) in cases
wherein the common child or the child of the
petitioner is subjected to physical abuse or
has been corrupted or induced to engage in
prostitution, respectively, are in violation of
R.A. No. 9262, these acts are also punishable
under R.A. 7610, otherwise known as the
"Special Protection of Children Against
Abuse, Exploitation and Discrimination
Act." These are forms of child abuse as the
child is subjected to maltreatment due to
physical abuse or sexual abuse.22
22
Section 3(b), R.A. No. 7610, reads:
xxx xxx
(b) "Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following:
(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;
Anent Article 55(9) of the Family Code,
this constitute a crime of attempted or
frustrated homicide as penalized under the
Article 246 of the Revised Penal Code,
which states:
(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;
(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or
(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or
death.
be sufficient to prove that collusion does not
exist between the parties. It is contrary to
human nature for husband and wife to agree
or to consent with the commission of
physical and sexual violence so as to show
that a ground for legal separation exists. In
the same vein, the presence of a pending
criminal complaint or case filed before the
prosecution office or the court duly proves
that the parties are in collusion. They would
not have subjected and exposed themselves
to criminal investigation, interrogation, or
endure trial proceedings have these acts of
violence were not real.
INVESTIGATION REPORT OF
THE PUBLIC PROSECUTOR
MUST BE SUBMITTED WITHIN
THE PRESCRIBED PERIOD
23
Roquero v. Chancellor of UP-Manila, G.R. No. 181851, March 9, 2010, 614 SCRA 723, 732.
24
Ibid.
the public prosecutor to appear
for the State at the pre-trial.
CONCLUSION
25
Pacete v. Carriaga, Jr., G.R. No. 53880, [March 17, 1994], 301 PHIL 328-338.
To conclude, the suggested revisions will help strengthen our procedural rules on legal separation. Still, the sanctity of
marriage and family life is duly preserved and further protected as mandated in our 1987 Constitution. As time continues to
change, so does our laws and rules in order to adopt to the never-ending metamorphosis the Filipino society experiences.