The selection of a spouse is arguably the most astounding choice in life. Many have had a “happily ever after” ending, but not everyone. Marriage is also volatile. In this discourse, we shall talk about what is legal separation in the Philippines; and, briefly, how the same differs from annulment of marriage or declaration of nullity thereof.
Spouses may have a wonderful start in their married life until suddenly, there comes the fallout of broken marriage that destroy lives. Some women are battered by their own husbands. Worse, some are murdered.
While it is true that there are many happy marriages, troubled marriages also abound. Some may be rehabilitated; others have become helpless and doomed. In the latter case, the Family Code provides for the remedy for the severance of problematic marital ties: (1) annulment; and (2) declaration of nullity of marriage.
At this point, couples battle in the legal arena for the sole purpose of cutting their marital ties and settle other issues concerning property, custody and support. The Family Code also provides for the option of legal separation.
In the case of annulment or nullity of marriage, the grounds for dissolution of marriage arise or exist before, or at the time of the celebration of marriage. Meanwhile, legal separation is similar to divorce where the grounds exist after the celebration of marriage.
Also, in annulment or nullity of marriage, dissolution of marriage is not the end-result of legal separation. As they say, legal separation is merely separation of bed and board because ties of marriage remain intact.
It means that legal separation does not dissolve the marriage, thus, right to remarry is not restored if one chooses to employ this remedy. The court leaves the parties as it finds them – married.
What is legal separation in the Philippines?
Legal separation is the legal recourse available to a husband and wife to get out from their valid but failing marriage. The aggrieved party may file a petition for legal separation based on several grounds enumerated in Article 55 of the Family Code.
Many may interchange the concept of legal separation from divorce. It is understandable because there are indeed significant similarities between the two concepts.
- First, in both concepts, the cause which gave rise to the separation of spouses exist only after the celebration of their marriage.
- Second, both legal separation and divorce entitles the spouses to live separately.
- Third, both legal separation and divorce allows the spouses to agree on the dissolution and liquidation of their property regime whether absolute community or conjugal partnership.
- Lastly, both concepts enable the spouses to settle with regards the custody of their children.
Nevertheless, legal separation can be distinguished from divorce in a number of ways. Unlike in divorce where the marriage tie is totally dissolved, legal separation does not affect the marital bond that exists between spouses. This means that in legal separation, the spouses are not allowed to remarry.
However, there is still no law which authorizes absolute divorce in the Philippines. This is because of the recognized State policy embodied in our Constitution which considers marriage as an “inviolable social institution” and is “the foundation of family life which shall be protected by the State.”
The case of Jimenez vs. Republic1 emphasizes the importance of marriage as a social institution:
“Marriage in this country is an institution in which the community is deeply interested. The state has surrounded it with safeguards to maintain its purity, continuity and permanence. The security and stability of the state are largely dependent upon it. It is the interest and duty of each and every member of the community to prevent the bringing about of a condition that would shake its foundation and ultimately lead to its destruction.”2
Nonetheless, absolute divorce was actually once recognized in the Philippines through Act 27103 and Executive Order No. 141.4 However, these laws were scrapped from the statute books after the New Civil Code or Republic Act No. 386 was enacted in 1950. From then on, only legal separation remained.
In his work entitled The Father of the First Brown Race Civil Code published in 1978, Professor Juan R. Rivera noted that the last few days of deliberation of the new civil code bill in the House of Representatives, the discussion was centered on the “alleged liberalized divorce” provisions.
Accordingly, the House was inundated with letters and telegrams from the country’s Catholic population urging to repeal the alleged provisions tending to liberalize divorce. Professor Rivera noted that the lower house concurred to the demands of the Catholic hierarchy for the reason that it was an election year.
Thus, the alleged liberalized divorce provisions were eliminated in the lower house. Professor Rivera further noted that the Senate even attempted to insert an amendment restoring absolute divorce in the new civil code.
However, it was nevertheless abolished upon the insistence of the lower house. Hence, notwithstanding the opposition of the Code Commission as well, only legal separation was retained.
What are the grounds for legal separation in the Philippines?
There are ten (10) grounds for legal separation as provided in the Family Code.5 These grounds are based on the conduct of the predominant spouse which may either be criminal in nature or devious behavior. These acts which may be directed towards the spouse or their children are:
(1) Repeated physical violence or grossly abusive conduct;6
(2) Physical violence or moral pressure to compel the other spouse to change religious or political affiliation;6
(3) Attempt to corrupt or induce engagement in prostitution;6
(4) Final judgment of conviction in a criminal case;6
(5) Drug addiction and alcoholism;6
(6) Lesbianism and homosexuality;6
(7) Contracting bigamous marriage;6
(8) Sexual infidelity or perversion;6
(9) Attempt against the life of the other spouse; and6
(10) Abandonment without justifiable cause for more than one year.6
In legal separation cases where abandonment is the ground, abandonment implies a departure by one spouse with avowed intent to never return again. There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation.7
In case of lesbianism or homosexuality, habitual alcoholism and drug addiction, to be a valid ground for legal separation, it is required by the Family Code that these causes arise only after the celebration of the marriage. Hence, the existence of any of said circumstance at the time of marriage, may not qualify as a valid ground for legal separation.
In Gandionco vs. Penaranda,8 it was held that a civil action for legal separation arising from the crime of concubinage may be filed. Such civil action may be proceeded ahead of or simultaneous with the criminal action for concubinage, with the intention of obtaining the right to live separately, and other legal consequences such as the dissolution of conjugal partnership gains, custody of offspring, support and disqualification from inheritance from the innocent spouse.
A charge for the crime of adultery is usually filed for the sole purpose of using it as a ground for legal separation. In our criminal law, each sexual intercourse by a person other than his own spouse constitutes the crime of adultery.
However, in People vs. Sensano,9 it was held that by the husband’s long absence, despite the adultery of his spouse, he is deemed to have consented to the adultery of his wife and is barred from instituting a case for adultery. Thus, the Court ratiocinated:
“Apart from the fact that the husband in this case was assuming a mere pose when he signed the complaint as the “offended” spouse, we have come to the conclusion that the evidence in this case and his conduct warrant the inference that he consented to the adulterous relations existing between the accused and therefore he is not authorized by law to institute this criminal proceeding.10
“We cannot accept the argument of the Attorney-General that the seven years of acquiescence on his part in the adultery of his wife is explained by his absence from the Philippine Islands during which period it was impossible for him to take any action against the accused. There is no merit in the argument that it was impossible for the husband to take any action against the accused during the said seven years.”10
In any case, condonation or forgiveness overcomes the marital offense arising from adultery. A single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation.11 Thus, there being condonation, no legal separation on the ground of adultery or concubinage may be granted.
What is the benefit of a legal separation?
The main purpose of spouses seeking for the issuance of the decree of legal separation is the benefit of having the right to live separately. It necessarily follows that living separately would stop the abusive spouse from inflicting further violence and injury to the innocent spouse and their children.
Damage to their marital assets and family home would also be prevented. Other reliefs may also be ordered by the court as provided under R. A. [Republic Act] No. 9262 or the Anti-Violence Against Women and Their Children Act of 200412 and under A. M. No. 02-11-11-SC of 2003.13
These reliefs may be in the form of protection orders, restraining orders, a judgment granting the spousal and child support. This means that the court can compel the guilty spouse to leave the family home and not come close the abused spouse or their children.
After all, the abusive spouse still has the legal obligation to support the innocent spouse who may also be compelled to leave home to escape from physical and mental violence. The victim spouse may also file a suit against the abusive spouse for damages.
In any case, protection order under R.A. No. 9262 is usually temporary, better still, the victim spouse may choose to institute a criminal action that would result in conviction and longer imprisonment of the abusive spouse.
Does a husband have to support his wife during separation?
It was held that, once the marriage is terminated, the obligation to give support ceases.14 Thus, since in legal separation, the marriage remains intact, the husband still has the obligation to give support to his wife on behalf of their children.
Moreover, subject to the discretion of the court, the abusive spouse is still legally obligated to support the spouse who was compelled to leave home to get away from violence and other forms of mental and physical abuse.
Thus, legal separation may be a good option for abused spouses who wish to get support from their abusive husband. Still, during the pendency of the action for legal separation, either of the spouses may be ordered by the court to give support and maintenance for their child.
Sec. 3 of A.M. No. 02-11-12-SC15 provides for the factors to be considered in determining the amount of provisional support, as follows:
(1) the financial resources of the custodial and non-custodial parent and those of the child;16
(2) the physical and emotional health of the child and his or her special needs and aptitudes;16
(3) the standard of living the child has been accustomed to;16
(4) the non-monetary contributions that the parents will make toward the care and well-being of the child.16
What are the disadvantages of a legal separation?
Legal separation is often seen as an absurd situation for the reason that it does not extinguish the marriage of the parties. In other words, legal separation only terminates the right to cohabitation of the spouses.
Even after obtaining a decree of legal separation, the spouses are still obligated to observe mutual fidelity. It does not extinguish the duty to be loyal to each other.
It also follows that marrying another person after the issuance of the decree of legal separation is prohibited because it would constitute bigamy.
Ironically, the only person with whom a party in a legal separation can have licit sexual intercourse with is his/her spouse he/she just sued for legal separation.
Otherwise, the husband may be liable for concubinage and the wife may be convicted of adultery if they commit said acts and the children born out of those illicit copulation would be deemed children out of wedlock. Simply stated, legally separated spouses are forcibly trapped inside the rule of sexual fidelity.
Legal separation may not be an ideal option for everyone seeking for legal remedy concerning a failed marriage. Some may consider stepping back and thinking again if legal separation is the right remedy.
In legal separation case, as the loser cannot remarry, the winner is also barred from remarrying. After all, the process of getting a decree of legal separation is just as tough as getting a decree of annulment or declaration of nullity of marriage.
Can you remarry after legal separation in the Philippines?
In essence, legal separation does not dissolve the marriage. Thus, in the eyes of the law, spouses who are legally separated are still married. It is just that legally separated husband and wife are allowed to live separately. In other words, legally separated spouses cannot remarry.
The court leaves spouses as if finds them – married. Their marriage bond still subsists. Consequently, subsequent marriages will be of no legal effect and may subject the marrying party to a prosecution for bigamy.
Final Thoughts
Currently, the Philippines is one of the two places in the world without the divorce law. This leaves the victims of failed and abusive marriage with legal separation as the only recourse. Legal separation has become obsolete.
The victims who have been trapped in abusive marriages deserve total freedom and find true happiness in being able to remarry. Marriage is constitutionally defined as an inviolable social institution.
Failed marriages, therefore, are broken institutions. Yet, who wants a broken institution that has no option of rebuilding itself? All these miseries will not end, unless the law is changed to make it more responsive in the current circumstances of times.
- G.R. No. L-12790, August 31, 1960[↩]
- Ibid.[↩]
- Act No. 2710[↩]
- Reference, Divorce in the Philippines: A Legal History[↩]
- Article 55, Family Code[↩]
- Id.[↩][↩][↩][↩][↩][↩][↩][↩][↩][↩]
- Partosa-Jo vs. Court of Appeals, G. R. No. 82606, December 18, 1992[↩]
- G.R. No. 79284, November 27, 1987[↩]
- G.R. No. L-37720, March 27, 1933[↩]
- Ibid.[↩][↩]
- Bugayong v. Ginez, G.R. No. L-10033, December 28, 1956[↩]
- RA 9262[↩]
- A. M. No. 02-11-11-SC of 2003[↩]
- Mendoza vs. Parungao, G.R. No. L-26231, August 7, 1926, 49 Phil. 271[↩]
- A.M. No. 02-11-12-SC, March 4, 2003[↩]
- Id.[↩][↩][↩][↩]
