VI.

THE LAW ON SEPARATION OF SPOUSES

B. Concept of legal separation
5. Effect of pendency of the petition

(d) pentente lite

Ramos v. Vamenta 46 SCRA 110

It is conceded that the period of six months fixed therein Article 103 (Civil Code) is
evidently intended as a cooling off period to make possible a reconciliation between the
spouses. The recital of their grievances against each other in court may only fan their
already inflamed passions against one another, and the lawmaker has imposed the
period to give them opportunity for dispassionate reflection. But this practical expedient,
necessary to carry out legislative policy, does not have the effect of overriding other
provisions such as the determination of the custody of the children and alimony and
support pendente lite according to the circumstances.
The law expressly enjoins that these should be determined by the court according to the
circumstances. If
these are ignored or the courts close their eyes to actual facts, rank injustice may be
caused. At any rate, from the time of the issuance of the order complained of on
August 4, 1971, more than six months certainly had elapsed. Thus there can be no more
impediment for the lower court acting on the motion of petitioner for the issuance of a
writ of preliminary mandatory injunction.

Lerma v. CA 61 SCRA 440

FACTS: (chronological order)

Lerma filed for adultery against his wife Diaz and a certain Ramirez.
Diaz subsequently filed for legal separation (concubinage and attempt
against her life) with an urgent motion for support pendent lite
Lerma opposed the support pendent lite, setting up his adultery charge
against Diaz as his defense.
The lower court granted the support pendent lite.
Lerma appealed. CA dismissed his petition, relying on CC 292 (FC 198: During
the proceedings for legal separation xxx, the spouses and children shall be
supported from the conjugal partnership property. xxx)
While the legal separation case was pending, Diaz and Ramirez was convicted
of adultery.

ISSUE(S): WON adultery is a defense against the respondents claim for support
pendente lite.
HELD: NO. RTC and CA decision set aside.
RATIO:
CC 292 contemplates the pendency of a court action and, inferentially at least, a
prima facie showing that the action will prosper.
If the action is shown to be groundless the mere filing thereof will not necessarily
set Article 292 in operation.
This is in relation to Rule 61 ROC, the procedural law on support pendent lite, in
which the court shall determine provisionally the probable outcome of
 the case.
Article 100 of the Civil Code provides that the legal separation may be
claimed only by the innocent spouse, provided there has been no condonation
of or consent to the adultery or concubinage . . . (and) where both spouses are
offenders, a legal separation cannot be claimed by either of them. . .
Within the meaning of Rule 61, the probable failure of Diaz suit for legal
separation can be foreseen since she is not an innocent spouse, having
been convicted of adultery by the CFI.
If legal separation cannot be claimed by the guilty spouse in the first place, the fact
that an action for that purpose is filed anyway should not be permitted to
be used as a means to obtain support pendente lite
Even without such action for support pendent lite, the Court will deny it due to
adultery.
Hence, adultery is a good defense.
Otherwise, all that an erring spouse has to do to circumvent such defense would be
to file a suit for legal separation no matter how groundless.
CASE LAW/ DOCTRINE:
Sec. 5 Rule 61, ROC: The court shall determine provisionally the pertinent facts,
and shall render such order as equity and justice may require, having due regard to the
necessities of the applicant, the means of the adverse party, the probable outcome of
the case, and such other circumstances as may aid in the proper elucidation of the
questions involved, x x x.

The right to support, whether from separate properties or from the CPG, presupposes the
existence of a justifiable cause on part of the innocent spouse who wants separation.

6. Defenses in legal separation

(a) Consent
FC 56(2); NCC 100
People v. Schneckenberger
FACTS: (chronological order)

Appeal from a judgment of the Court of First Instance of Manila

Mar. 16, 1926 Rodolfo A. Schneckenburger and Elena Ramirez Cartagera married,
after 7 years, they separated for reason of alleged incompatibility of character and
agreed to live separately
Mar. 25, 1935 Schneckenburger and Cartagera executed a document stating that
they agree to live apart for the rest of their lives, not to intervene in public/private
life, and to give freedom to each other to perform any act in all concepts =
CONSENT!!!
June 15, 1935 Schneckenburger secured a decree of divorce from a civil court in
Mexico WITHOUT leaving the PHL
May 11, 1936 Schneckenburger married Julia Medel
Because of the nullity of the divorce decreed in Mexico, Caratagera instituted two
actions against Schneckenburger; (1) bigamy, (2) concubinage
For the bigamy case, Schneckenburger was convicted
For the concubinage case, Schneckenburger interposed the plea of double jeopardy
and the case was dismissed, upon appeal by the fiscal, the court held the dismissal
as premature and remanded the case to the trial court WITHOUT discussing the
 issue of double jeopardy
Schneckenburger was then convicted of concubinage, hence the appeal

ISSUE(S):
WON Schneckenburger should be acquitted of the crime of concubinage in view of the
agreement between him and Cartagera

HELD: YES! Agreement serves as consent, so Schneckenburger should be acquitted!

RATIO:

The Court believes that Schneckenburger should be acquitted of the crime of

concubinage in view of the agreement that he and Cartagera executed. Although it is
illegal for the purpose it was executed, it still constitutes as valid consent under RPC 344,
and under FC 56 (2). The Court holds that the consent of Cartagera prior to the 2nd
marriage of Schneckenburger serves as a bar against her proecuting Schneckenburger for
concubinage.

AS TO DOUBLE JEOPARDY ISSUE

Concubinage and Bigamy does not constitute the same crime, so no double jeopardy!

Judgment is REVERSED!
Schneckenburger is ACQUITTED!

CASE LAW/ DOCTRINE: An agreement to allow marital offenses is illegal but a defense
for legal separation.

(b) Condonation

FC 56(1)
Ginez v. Bugayong 100 Phil 616
FACTS:
Petitioner Benjamin Bugayong was a serviceman in the U.S. Navy who married
respondent Leonila Ginez on Aug. 27, 1949 at Pangasinan, while on leave. After
celebrating the marriage, they lived w/ Benjamins sisters in Pangasinan and had an
agreement that when Benjamin already leaves for duty, Leonila is to stay w/ his
sisters. But they eventually moved so Sampaloc, Manila.
But on July, 1951, Leonila left the home of Benjamins sisters and lived w/ her
mother in Pangasinan. Later on moved to Dagupan for her to study there.
On same date, July, 1951, Benjamin was already receiving letters from Leonilas
sister, Valeriana Polangco, and other anonymous writers, alleging that Leonila is
committing acts of infidelity, and kissed a certain Eliong.
So Bejmain sought advice from the Navy Chaplain about legal separation. Also, on
Aug., 1952, he went to Pangasinan to look for Leonila and found her. He persuaded
Leonila to go to Pedros house (Benjamins cousin) where they slept there for 2
nights and 1 day as husband and wife. And later on slept in Benjamins house for
another night as husband and wife.
After sleeping 1 night in Benjamins house, he asked Leonila about this adulterous
acts but instead of Leonila answering, she just left, w/c prompted Benjamin to build
a belief that such adulterous acts are true. Despite such belief, he tried to find her
 but failed to do so. He instead went to Ilocos Norte to soothe his wounded
feelings.
Later on, he filed w/ the CFI of Pangasinan this petition for legal separation on the
ground of sexual infidelity by Leonila and presented 6 witnesses to support his
claim.
Leonila, as defense, states, that assuming arguendo that such acts of infidelity are
true, Benjamin already condoned to it.
CFI ruled in favor of Leonila and dismissed the case based on condonation. CA
passed it to SC because the issue was a question of law.
ISSUE:
WON Benjamin condoned the alleged acts of infidelity of Leonila. YES.
HELD:
SC noted;
a. That when he went back to Pangasinan in Aug. 1952 to find out the truth of the
alleged infidelity, he had slept w/ his wife for 2 nights and 1 days but failed to do
so because Leonila left when Benjamin confronted her about it;
b. That after running away, he tried to find her; and
c. That, also, in the hearing while the case was still in the CA, that was when he
admitted that he had slept w/ Leonila.
SC agrees w/ the CFI that the conduct of Benjamin despite his belief that Leonila
was unfaithful, deprives him, as alleged the offended spouse, of any action for legal
separation against the offending wife.
SC cites American jurisprudence as support to their conclusions because it is said
that one voluntary act of marital intercourse between the parties is sufficient to
constitute condonation, and where the parties live in the same house, it is
presumed that they live on terms of matrimonial cohabitation:
a. In Land v. Martin and Day v. Day, a divorce suit will not be granted for adultery
where the parties continue to live together after it was known;
b. In Rogers v. Rogers, sexual intercourse after knowledge of adultery constitutes
condonation; and
c. In Toulson v. Toulson, citing Phinizy v. Phinizy, merely sleeping together for a
single night.

DOCTRINE: Forgiveness of a marital offense constituting a ground for legal separation

may be expressed or implied. A single act of consented sexual intercourse implies
condonation.

(c) Recrimination - the accuser is as guilty as the accused.

FC 56(4)
Ong vs Ong, G.R. No. 153206, October 23, 2006

FACTS: (chronological order)

1996: Lucita filed a petition for legal separation against her husband, William.
She alleged that William is a wife-beater and had inflicted physical violence
against her for the last 20 years of their marriage.
That in 1995, after a violent quarrel with William, she had to leave the
conjugal house and stay with her parents. This incident prompted her to file
the petition.
Her sister and the doctor that treated her injuries after the violent quarrel
 attested to her allegations.
William denied everything but did not present evidence to support his
counterclaim.
RTC granted the petition and CA affirmed in toto.
William filed for certiorari, raising recrimination as a defense - that the
petition should be denied since they both have grounds to file for legal
separation (Art. 56 (4)).
That his ground is that Lucita abandoned him.
ISSUE(S): WON there is recrimination when Lucita abandoned William.
HELD: There is none. SC affirmed CA and RTC in toto.

RATIO:
Abandonment as a ground for legal separation under Art. 55 (10) should be without
a justifiable cause.
Lucita left the conjugal dwelling because of Williams repeated physical violence
and grossly abusive misconduct against Lucita.
These allegations were proven in trial from testimonies and evidence presented by
Lucita. William did not attempt to disprove the allegations and only presented a
general denial of the accusations.
Therefore, Lucitas abandonment was justified. William has no ground for legal
separation against Lucita.
CASE LAW/ DOCTRINE:
Abandonment with justifiable cause is not a ground for legal separation.

(d) Collusion/Mutual Consent

FC 60
FC 56(3), (5), compare with NCC 101 and 221(3)

Republic v CA, November 12, 2012

FACTS:
Eduardo and Catalina de Quintos were married in civil rites. Eduardo filed a petition for
the declaration of nullity of their marriage, citing Catalinas psychological incapacity to
comply with her essential marital obligations. Catalina did not interpose any objection to
the petition, but prayed to be given her share in the conjugal house and lot located in
Bacabac, Bugallon, Pangasinan. After conducting an investigation, the public prosecutor
determined that there was no collusion between Eduardo and Catalina.

Eduardo testified that Catalina always left their house without his consent; that she
engaged in petty arguments with him; that she constantly refused to give in to his sexual
needs; that she spent most of her time gossiping with neighbors instead of doing the
household chores and caring for their adopted daughter; that she squandered by
gambling all his remittances as an overseas worker in Qatar since 1993; and that she
abandoned the conjugal home in 1997 to live with Bobbie Castro, her paramour.

Catalina did not appear during trial but submitted her Answer/Manifestation, 10 whereby
she admitted her psychological incapacity, but denied leaving the conjugal home without
Eduardo's consent and irting with different men. She insisted that she had only one live-
in partner; and that she would not give up her share in the conjugal residence because
she intended to live there or to receive her share should the residence be sold.
RTC granted the petition annulling the marriage. It ruled that Catalinas infidelity, her
spending more time w/ friends rather than w/ her family, and her incessant gambling
constituted P.I.
The State appealed to the CA but the CA affirmed the RTCs decision concluding that the
evaluation by Dr. Reyes sufficiently proved Catalinas P.I.

The OSG argues that the findings and conclusions of the RTC and the CA did not conform
to the guidelines in the Molina doctrine. The OSG further argues that Catalinas infidelity,
gambling habits and abandonment of the conjugal home were not grounds under Article
36 of the Family Code; that there was no proof that her infidelity and gambling had
occurred prior to the marriage, while her abandonment would only be a ground for legal
separation under Article 55.

ISSUE: Whether there was a collusion between Eduardo and Catalina

HELD: YES. Verily, the payment to Catalina could not be a manifest sign of a collusion
between her and Eduardo. To recall, she did not interpose her objection to the petition to
the point of conceding her psychological incapacity, but she nonetheless made it clear
enough that she was unwilling to forego her share in the conjugal house. The probability
that Eduardo willingly gave her the amount of P50,000.00 as her share in the conjugal
asset out of his recognition of her unquestionable legal entitlement to such share was
very high, so that whether or not he did so also to encourage her to stick to her
previously announced stance of not opposing the petition for nullity of the marriage
should by no means be of any consequence in determining the issue of collusion
between the spouses.

7. Effects of decree of legal separation

(a) On personal relations, FC 63

(b) On the custody of children

FC 63(3); FC 213
NCC 106(3)

Matute v. Macadaeg, 99 Phil 340, May 30, 1956

FACTS:
Armando Medel brought an action for legal separation against Rosario Matute, upon
the ground of adultery committed with his brother, Ernesto Medel. The decision
found Rosario guilty of the charge against her, decreeing said legal separation, and
awarding to Armando the custody of their four (4) minor children.
Armando went to the US, leaving the children in the City of Davao under the care of
his sister Pilar Medel, in whose house Rosario subsequently lived in order to be with
her offspring. Armando returned to the Philippines late in 1954.
With his permission, Rosario brought the children to Manila to attend the funeral of
her father. Armando alleges that he only consented on the condition that she would
return the children to him within two (2) weeks. However, Rosario did not do so.
Rosario filed a motion for praying for the awarding the custody of her children and
Armando be obligated to support the children in their studies and give them a
 monthly allowance. It was alleged that three of the children did not want to live
with their father because he is already living with a woman other than their mother.
Armando opposed this motion and countered with a petition to declare and punish
Rosario for contempt of court, because of her failure and alleged refusal to restore
the custody of their children to him.
CFI Manila, presided over by respondent judge, issued an order absolving Rosario
from the charge of contempt of court as she secured Armando's consent before
bringing the children to Manila. On the other hand, the Court denied her motion for
the custody of the children and ordering her to deliver them to Armando within
twenty-four hours from notice.
Rosario instituted this action of certiorari and prohibition on Armando and
respondent judge.
ISSUE(S): Can Rosario obtain custody of her children?
HELD: No. Petition is dismissed.
RATIO:
She merely obtained his permission to bring them to Manila, for the purpose of
attending the funeral of their maternal grandfather. She obtained and has the
physical possession of the minors in a precarious manner. He may, therefore,
demand their return at any time, and she is bound to comply immediately with
such demand.
Again, it is conceded that children over ten (10) years of age, whose parents are
divorced or living separately, may choose which parent they prefer to live with,
unless the parent chosen is unfit to take charge of their care by reason of moral
depravity, habitual drunkenness, incapacity or poverty (Rule 100, section 6, Rules
of Court).
The fact remains that she is without means of livelihood and, according to her own
admission, she lives on the charity of her brothers. She has no home of her own to
offer to her children, but only she would shelter them under the roof of her
brothers. Poverty, among other causes, rendered her unfit to take charge of her
children or made it unwise to place them under her care.

DOCTRINE: Decisions referring to custody of children, said decision is never final, in the
sense that it is subject to review at any time that the Court may deem it for the best
interest of minor children. It is no les true, however, that, unless and until reviewed and
modified, said award must stand.