Legal Separation and its Effects on the Child’s Welfare

A Research Presented to

The Faculty of the Senior High School Department

San Pedro College, Davao City

In Partial Fulfillment

of the Requirements for the subject of

SOCIO 100

By

Aila Marie C. Arandilla

Queenie Mae C. Montiman

Rowella R. Parantar

Anne Lexcee V. Pimentel

Kristine Nicole D. Sator

 Lovellajoy O. Valderama

Georjhan D. Velasco

December 2017

I.

Context/Issue

Marriages that cannot work out their differences may file an annulment since
divorce is not yet allowed in the Philippines. However, there are marriages that cannot
be annulled yet qualified for legal separation (Solis, 2017).

Legal separation is a legal process of filing a petition in the appropriate court

seeking a judicial declaration of legal separation for married couples. It is a separation
that can be a cooling down period if there has been a lot of conflict in the marriage.
Spouses are still considered married to each other, and thus, may not remarry. Marital
obligations of the spouses to live together as husband and wife as well as their property
relations are terminated in this process. Property rights between the two parties are
divvied up, as are child custody, child support and spousal support right and obligations
(Meyer, 2017).
 A child’s welfare may be affected due to the separation since the family is the
primary group where the child is initially socialized and initiated in the ways of life of his
group. It provides the child’s social, psychological, and emotion needs like warmth,
intimacy, affection, love, affection, nurturance, care and security (Nickson, 2017).

The welfare of the child is one issue of legal separation because when parents are
separating, one thing uppermost in the minds of both parties is how it will affect their
children. A great deal of distress when the separation occurs is one common factor that
children will generally experience. It’s very typical for children to be unhappy and want
their parents to remain together. That happiness can translate into low self-esteem,
behavioral problems, and a sense of loss (San Juan & Centeno, 2007).

II.

Statement of Problem

The main objective of this study is to determine the effects of separation to

children by answering the following questions:

1. Why is a child’s welfare an issue in legal separation?

2. How does separation actually affect children?

3. How does the child cope up with the separation?

III.

Review of Related Literature

Legal Separation is a proceeding which seeks to affirm the bed and board
separation of husband and wife without affecting the existence and validity of their
marriage (Mamangun, 2011). Couples who do not want divorce, but who wants to live
separately and want matters such as property division, child support and child custody
to be clarified legally would rather choose legal separation (Reuters, 2010).

Unlike divorce, legal separation does not end a marriage. Although rights and
obligations are clarified under a courts separation order, the marriage still legally exists.
For this matter, people who are legally separated are not allowed to marry a new
spouse. Legal separations also allow couples to easily return to their life together if they
decide to reconcile. Unlike divorced couples, if a legally separated couple desires to
reconcile, they do not need to remarry. They just need to submit a request to resume
their marriage to the court. On the other hand, if a couple decides to finally end the
marriage, a legal separation order makes the divorce process easier (Reuters, 2010).

In Legal Separation, marital obligations of the couple to live together as husband

and wife as well as their property relations are concluded. Article 55 of the Family Code
of the Philippines states the different grounds for legal separation. These are the
following: 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 respondent; 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 (The Family Code of the Philippines, 1987).

If the court grants your petition, a Decree of Legal Separation shall be issued by the
court after you have fully complied with the liquidation of your properties as provided
under the Family Code. The effects of a decree of legal separation are stated in Article
63 of the Family Code, to wit: 1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be severed; 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, which shall be forfeited in accordance with the provisions of
Article 43(2); 3) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code; and 4) The offending
spouse shall be disqualified from inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the offending spouse made in the will of
the innocent spouse shall be revoked by operation of law (The Family Code of the
Philippines, 1987).

Since marriage is not legally terminated in legal separation, many issues will have to
be fixed together, including: child custody, childcare costs, living situations, spousal
support, property ownership, dividing debts, etc. Because couples have to work
together regarding these issues, there is often less distance between them than in a
divorce or annulment. This contact may affect a child’s reaction and understanding of
the situation (Fischer & Van Thiel, 2011).
 According to Article 213 of the Family Code of the Philippines, the paramount
importance when it comes to child custody is the welfare of the child. This means that
the court will take careful consideration into the capabilities of both mother and father
to raise the child, which includes their social, moral, and economic situation. It should
also be remembered that other procedural rules can be overridden by the best
interests of the child, especially if the child is already capable of making intelligent
decisions. As stated in Article 213 of the Family Code, “Every child has rights which are
not and should not be dependent solely on the wishes, much less the whims and
caprices, of his parents. His welfare should not be subject to the parents’ say-so or
mutual agreement alone.” (DDS, 2017).

Parental separation may cause changes in a child’s life, such as changes in

relationships, changes in parental work patterns, changes in residence and school, and
family adjustments that may both parents and children. The separation may also bring
positive changes on the children’s lives (Hogan, et., al., 2002).

According to Hogan, et. Al. (2002), on their study about Children’s experiences of
parental separation, Children varied considerably in their experiences on parental
separation, often even within the same families, and therefore it is impossible to
conclude that separation is either a ‘positive’ or ‘negative’ experience for children.
Children experienced the separation as both an event and a process, involving
adjustment over time, and experience of further changes in family structure.

A seminal study on divorce in the USA by Wallerstein and Blakeslee (1989) showed
the negative effects of parental separation on children and set the agenda for family
law internationally. They found out that parental separation was not just the
breakdown of relationships between the couple, but simultaneously was a breakdown
of parent-child relationships. The sudden leave of a parent may cause acute anxiety in
children that their second parent might also abandon them. This research presents the
importance of parents communication with their children, parental management of the
separation process and the need to try and maintain ongoing parent-child relationships
even when their conjugal relationships were disintegrating (Mahon & Moore, 2011).

Parental separation may also leave children struggling emotionally. Sadness and
anger are normal, regardless of the child’s age. Sadness can lead to isolation, loneliness,
and social difficulties. They may also have poor performance academically as a result of
the separation. Anger can also be seen as children feels abandonment, worry, guilt or
blame towards the other parent (Coulson, 2013).

Most children lose out when their parents separate. They lose access to their
parents in times when they need them, and this loss impacts profoundly on their
development. When children are secure they work hard and excel because they feel
safe enough to explore, learn, develop, and grow. On the other hand, separation leads
to insecurity, which triggers their development and exploration of the world (Coulson,
2013).

In times like this, children needs coping and support from people who are close to
them and to who they can talk to comfortably. The family and friends, constituted the
most important source of support for children. Children may also receive support from
formal services and even schools. Participating in a group-support service can help by
reducing children’s sense of being different from others. Other children prefers
distraction as a way of coping, they enjoyed spending time and sharing activities with
others who they believed would understand them (Hogan, et. al., 2002).
IV.

Synthesis/Analysis/Evaluation

A. Political/Legal Basis

Child custody is one of the most exquisite aspects in family litigation. A custody
battle could be an independent case or an incident in an annulment/separation case.
The paramount standard in custody query is the well-being and welfare of the child, or
their best interest. In making a decision as to whom custody of the child should be
given, the court should take into account the particular resources and social and moral
situations of the contending parents. Nonetheless, this primordial rule can trample the
rights of one or both parents over their children (Pamaos, 2007).
 According to Article 213 of the Family Code, “no child under seven years of age
shall be separated from the mother, unless the court finds compelling reasons to order
otherwise.” This is a general rule which is based on the essential need of a child for his
mother’s loving care (Pamaos, 2007).

Stated in Article 1 of the Child and Youth Welfare Code, the child is one of the most
important assets of the nation. Every effort should be exerted to promote his welfare
and enhance his opportunities for a useful and happy life. The child is not a mere
creature of the State. However, his individual traits and aptitudes should be cultivated
to the utmost insofar as they do not conflict with the general welfare. The molding of
the character of the child start at the home. Consequently, every member of the family
should strive to make the home a wholesome and harmonious place as its atmosphere
and conditions will greatly influence the child’s development. Attachment to the home
and strong family ties should be encouraged but not to the extent of making the home
isolated and exclusive and unconcerned with the interests on the community and the
country. The natural right and duty of parents in the rearing of the child for civic
efficiency should receive the aid and support of the government. Other institutions, like
the school, church, the guild, and the community in general, should assist the and the
State in the endeavor to prepare the child for the responsibilities of adulthood (Robles,
1998).

Therefore, since it is part of the legal process of the separation to make the child
decide where he wants to stay with, the child’s welfare is indeed an issue. The long
process may cause confusion and devastation to the child which may lead to
misunderstandings and may ruin parent-child relationship.

The separation may also affect the child’s rights stated in the Article 3 of the Child
and Youth Welfare Code, that every child has the right to a wholesome family life that
will provide him with love, care and understanding, guidance and counseling, and moral
and material security (Robles, 1998).
 Moreover, the children may seek legal help to help them cope up with the
separation. Presented on the Article 207 and 208 of the Child and Youth Welfare Code
are power and functions of the Council for the Welfare of Children and Youth, and the
offices who coordinates in the implementation of laws and programs for child and
youth welfare.

B. Sociological Basis

Parental separation impedes society by weakening beliefs in the family as a basic

social unit. According to sociologists, a family does more than unite people by marriage
and blood; it also provides the educational, financial, and emotional support its
members need to flourish socially. Without this support, separated adults and their
children are mentally and physically weakened, which leads them to become less
productive social participants (Vrouvas, 2015).

Whenever a couple decides to separate, children experience changes in the

stability of their lives at many aspects. Children can react differently to separation. The
way they react depends on a lot of things, but two important factors are the age of the
child and the degree of conflict and animosity between the parents. Children do not
mostly communicate with words. Their reaction to their parents’ separation may be
shown in their behavior. Some children become withdrawn and they avoid topics or
conversations about the separation or the absent parent. Others may regress in their
behavior - they may act younger than they did before the separation. Some may have
nightmares, others become rebellious, they become difficult to handle or aggressive to
other children and even to their parents (Australian Government Initiative, 2010).

Most children under parental separation experience disruptions; changes in child

care, living arrangements and schools. According to sociologist Molly Martin, girls who
were raised by a separated parent tend to live on welfare and require public housing as
adults.
 Many sociologists believe that societies that are hoping to be flourished should rear
children responsibly. In most functioning societies, a complete family helps children
develop strong moral character. Children who lacks guidance, or those who grew up in
a broken family are more likely to behave as social deviants. Findings by The Heritage
Foundation reported that these children are more likely to commit minor and serious
crimes, be suspended from school, run away from home, smoke cigarettes, abuse
alcohol and drugs, carry weapons and engage in physical fighting. Parental separation
risks society by disrupting children’s lives, which makes it difficult for them to perform
well in school and pursue higher education. According to studies, children of separated
couples score lower on tests of cognitive development, verbal reasoning and math and
science aptitude. As for educational attainment, these children are more likely to drop
out of high school or not pursue college (Vrouvas, 2015).

Thus, for a society to grow and flourish, children should always be given proper
attention and care because they are a nation’s hope. And for them to be able to
develop as a useful individual, an intact and happy family is a great foundation. Hence,
legal separation particularly menaces the society since it really has an immense effect
to the child’s development.

Furthermore, even after the separation, parents must help their children adjust and
understand the situation. They should provide support during this time of great
difficulty.

C. Religious/Theological Basis

God expects that those who are married should remain faithful to the marriage
vow. As God united the first man and woman in marriage, He said, “A man… will stick
to his wife, and they will become one flesh.”. However, in certain situations, some
couple decided to separate from a marriage mate even though one has not committed
sexual immorality. In such cases, the Bible stipulates that the departing one must
remain unmarried or else be reconciled with the partner (Watch Tower Bible, 2000).

Therefore, legal separation does not defy God’s word since people who are under
legal separation are not allowed to remarry others.

Meanwhile, in legal separation, the religious upbringing of a child is generally left to

the parents’ discernment as long as the family is still complete. But upon the family’s
dissolution, the parent who has the custody of the child retains the right to control their
religious training unless the custodial order specifies otherwise (Zarowny, 1980).

Whenever courts are asked to answer the question of what religion a child should
follow after a separation, they often balance two competing interests, the best
interests of the child, and the rights of the parents. Often, in a case where a court must
decide about the child’s religious upbringing, one parent will argue that the child’s
welfare will be put into danger if he will be raised under the other parent’s religious
upbringing. In such case, the court should weigh the benefits and costs of one parent’s
First Amendment rights versus the best interests of the child (Findlaw, 2011).

Thus, this may cause confusion to the child as to what religion he or she must
follow. It is important to be cautious in what religious upbringing the child should grow
up in because spirituality is one essential factor of an individual’s development.

In addition, it is more preferable if the child will be able to choose his own religion
because it is their right to follow what they believe in and develop their spiritual health.

V.
Recommendations

Based on the analysis of the issue disputed, here are the following
recommendations;

1. A range of support programs can be developed to address the changing needs of

children and families, during the legal separation process and after.

2. Provisions can be made for research and evaluation of supports for children and
their families.

3. Parent-child contact with the departing parent should be maintained.

4. Qualitative research can be conducted to investigate the experiences of children

who have parents under legal separation.

5. Other issues related legal separation can be used as basis for further research.
VI.

REFERENCES

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