Legal Separation

Civil, Featured, Persons and Family Relations May 20, 2010 at 11:19
In recent years there has been an increase in the number of couples
desiring to terminate their marriage for one reason or another. One of
these is the physical abuse they experience from their partner or
sometimes, bizarre traits, which they discovered in their partner such as
excessive alcoholism or even tendencies to fall with someone of the
same sex.
In this article, I will discuss with you the concept known as Legal
Separation, a term which some of you may have already encountered
but the meaning of which is still unclear in your minds.

Photo source: Answers.com

What is legal separation?

Legal separation is a decree from the court permitting the husband and
the wife to live separately from each other.
How is it different from declaration of nullity and annulment of
marriage?
There are several differences among these legal concepts but the main
difference is that unlike in declaration of nullity and annulment of
marriage, the marriage is not severed in cases of legal separation. Thus,
the husband and the wife are still married despite the decree of legal
separation.
What are the 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 against the petitioner, common child, or a child of the

petitioner. Thus if for example the husband keeps on hitting the wife with a dos por dos, then the wife can file

a legal separation. Take note that the physical violence must be repeated or that the abusive conduct must be

gross, otherwise there is no ground for legal separation.

2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliations. For

example if the wife threatens the husband that if the latter does not support the Liberal Party, the wife will leave

the husband. In this case, the husband can file a case for legal separation against the wife due to the moral

pressure.

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. For example, if the wife has an 18-year-old

daughter from his former marriage, and the present husband compelled this daughter to pose for FHM, there will

be no case of legal separation because mere posing in FHM is not prostitution. But if the stepfather required this

daughter to work as a prostitute in Quezon Avenue, then there will be a basis for legal separation.

4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned. For

example, if the husband was convicted of plunder, a case that has a penalty of life imprisonment, the wife can

file a case for legal separation. This will prosper even if the President pardons the husband.

5. Drug addiction or habitual alcoholism of the respondent. Thus if the husband went to a bar, tasted a beer for the

first time and after realizing how good it was, he downed one case before going home the next day after, there

will be no case of legal separation because the alcoholism of the husband is not habitual. It would be different in

case the husband made it a habit to do this drinking spree every night.

6. Lesbianism or homosexuality of the respondent. For example, if the husband keeps going to a gay bar and

engages in homosexual acts with the hunky dancers, then the wife has a case for legal separation.

7. Contracting by the respondent of a subsequent bigamous marriage, whether here or abroad. So, if the husband

went to Korea to look for a fair skinned lady and later on married the latter despite the existence of his marriage

with his Filipina wife, the latter can file a case for legal separation.

8. Sexual infidelity or perversion. For example if the wife had sex with a man not his husband, the husband can file

a case for legal separation against the wife.

9. Attempt by the respondent against the life of the petitioner. Thus if the wife tried to kill the mother of the

husband, there will be no case of legal separation because the attempt was not against he petitioner. But if the

husband tried to kill the husband, then there will be a case for legal separation.
10. Abandonment of petitioner by respondent without justifiable case for
more than one year. So, when the husband was stranded in an island
due to a plane crash and was rescued after a year, there will be no case
of legal separation because there was a justifiable cause. But if the
husband just went around the world for no valid reason and did not
return after a year, the wife can file a case for legal separation against
the husband.
Is there a period within which I am allowed to file the case for
legal separation?
Yes. The affected party has five (5) years from the date of the
commission of the offense within which to file the case for legal
separation.
Will the trial proceed immediately after the filing of the case for
legal separation?
No. An action for legal separation shall in no case be tried before six
months shall have passed since the filling of the petition. This six
months cooling off period is designed to give the husband and the wife
time to think about their status with the hope that they reconcile in the
end.
When will I be allowed to live separately from my
husband/wife?
After the filing of the petition for legal separation, the spouses shall be
entitled to live separately from each other.
What are the effects of legal separation?
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 bond shall not be severed. This

means that even if the husband and the wife are entitled to live separately from each other, neither one of them

is allowed to marry another person, because if he/she does so, he/she will commit bigamy.

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.

Take note that the right removed is limited only to the net profits and not to the whole property regime.
3. The custody of the minor children shall be awarded to the innocent spouse, subject to the provision of Article

213, which provides that parental authority shall be exercised by the parent designated by the court and that

maternal preference shall be exercised in case the child is less than seven (7) years of age.

4. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Thus

the husband who constantly harms his wife will not receive inheritance from his wife who died without a will. But

in case the wife made a will and bequeathed a property to her husband, the law also provides that provisions in

favor of the offending spouse in the will of the innocent spouse shall be revoked by operation of law.