Legal Separation In The Philippines

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Legal Separation or relative divorce is a judicial decree allowing married couples from living separately from bed and board.

Compared to Declaration of Nullity of Marriage and Annulment of Marriage, not too many petitions for legal separation are filed in court.  This is probably because legal separation does not have the effect of severing the marital bond and thus, none of the parties may enter into another marriage.

There are several grounds on which a petition for legal separation may be filed on.  These include:

  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 respondents;

  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.

A petition for legal separation is not heard immediately after it is filed. A mandatory six-month cooling-off period is set by the court to give the parties enough time to contemplate on a possible reconciliation.

Not all petitions for legal separation are granted by the courts.  The reasons for the denial vary from failure to prove the attendance of any of the above-mentioned grounds, as well as any of the following:

  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 the decree of legal separation; or

  6. Where the action is barred by prescription;

  7. Death of one of the parties; and

  8. Reconciliation of the parties.

On the other hand, a petition for legal separation which is granted by the courts shall have the following effects:

  1. The spouses shall be entitled to live separately from each other even if the marriage bond is not severed;

  2. The absolute community or conjugal partnership shall be dissolved and liquidated;

  3. The custody of the minor children shall be awarded to the innocent spouse, subject to exceptions like the tender-age rule or the choice of a child above seven years;

  4. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession, and the provisions in favor of the offending spouse made in a will of the innocent spouse shall be revoked by operation of law;

  5. The offending spouse shall have no right to any share in the net profits of the absolute community or the conjugal partnership;

  6. The innocent spouse may revoke the donations made by him in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if the designation be irrevocable.

As an additional effect, the wife cannot petition to be allowed to use her maiden surname even after legal separation is granted.

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The requisites of a valid marriage in the Philippines are grouped into two – the essential and the formal.  Previously, we have provided an enumeration of the formal requisites of marriage on the Philippines.  We recapitulate these as follows:

  1. Authority of the solemnizing officer;
  2. A valid marriage license, except in certain circumstances; and
  3. A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

Similar to the essential requisites of marriage, an absence in any of the formal requisite shall render the marriage void ab initio.  However, an irregularity in any of the formal requisite would not affect the validity of the marriage but those responsible for the irregularity are subject to criminal, civil or administrative liabilities.

Authority of the solemnizing officer

The Family Code lists the people who are authorized to solemnize marriages as follows:

  1. Priests, rabbis and ministers of any church who had been duly authorized by their church or sect to administer marriages and who had been registered with the Office of the Civil Registrar General;
  2. Municipal and city mayors;
  3. Incumbent members of the judiciary;
  4. Ship captains or airplane chiefs (only in cases in articulo mortis);
  5. Commanders of military units (in the absence of a chaplain);
  6. Consul generals, consuls or vice-consuls

It is worthy to note that the marriage is still valid even if solemnized by a person not authorized to solemnize marriages, provided either of the parties had believed in good faith that the solemnizing officer had the authority to do so.

Valid marriage license

Generally, parties getting married are required to secure a marriage license.  However, there are instances when the law exempts couple from securing one.  Some of these include:

  1. If the marriage is one among Muslims or members of ethnic cultural communities, provided that the marriage shall be solemnized in accordance with their customs, rites and practices;
  2. If the marriage is solemnized in another country which does not require a license;
  3. If the contracting parties have cohabited exclusively and without legal impediment as husband and wife for at least five years prior to the date of marriage.

The marriage ceremony

The law does not have rules on how the marriage shall be celebrated, as long as the contracting parties personally appear before the solemnizing officer to make a declaration that they take each other as husband and wife, with at least two persons of legal age standing as witnesses to the ceremony.