LEGAL SEPARATION

Love happens to everyone. It is dubbed to be boundless as

it goes beyond the expectations people tagged with it. In
love, “age does matter.” People love in order to be secure
that one will share his/her life with another and that he/she
will not die alone. Individuals who are in love had the
power to let love grow or let love die – it is a choice one
had to face when love is not the love he/she expected.
(PADILLA- RUMBAUA VS RUMBAUA G.R. No. 166738, AUGUST
14, 2009)
• Legal separation is merely the separation of
spouses from bed and board. (Article 63 of
the Family Code) While it permits the partial
suspension of marital relations, the marriage
bond still exists as the marital bonds are not
severed as in the case of annulment or
petition for nullity.
DISTINCTIONS
ANNULMENT LEGAL SEPARATION
(a) Defective at the very (a) No defect in the marriage at
beginning. the beginning.
(b) The cause must be already (b) The cause arises after the
existing at the time of the marriage celebration.
marriage.
(c) There are seven grounds for
(c) There are ten grounds for
annulment.
legal separation.
(d) Dissolves the marriage bond.
(d) The marriage remains.
(e) Under Private International
Law, the grounds are generally (e) The grounds are those given
those given in the lex loci by the NATIONAL LAW.
celebrationis (Art. 71 of the Civil
Code).
PETITION FOR LEGAL SEPARATION
(A.M. No. 02-11-11-SC RE: PROPOSED RULE ON LEGAL SEPARATION)

Who may file?

A petition for legal

separation may be filed only by
the husband or the wife, as
the case may be.

When to file?

Within five years from

the time of the occurrence of
any of the causes.
PETITION FOR LEGAL SEPARATION
What are the grounds?
(a) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner;

(b) Physical violence or moral pressure to compel

the petitioner to change religious or political
affiliation;

(c) 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;
PETITION FOR LEGAL
SEPARATION
(d) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(e) Drug addiction or habitual
alcoholism of the respondent;
(f) Lesbianism or
homosexuality of the respondent;
(g) Contracting by the
respondent of a
subsequent bigamous
marriage,
whether in or outside the Philippines;
PETITION FOR LEGAL
SEPARATION
(h) Sexual infidelity or perversion of the
respondent;

(i) Attempt on the life of petitioner by the

respondent; or

(j) Abandonment of petitioner by

respondent without justifiable cause for
more than one year.
 1. Repeated Physical Violence
ONG vs. ONG
G.R. NO. 153206, OCTOBER 23, 2006

Facts: On March 21, 1996, Lucita Ong filed a Complaint for Legal
Separation under Article 55 par. (1) of the Family Code before the RTC of
Dagupan City. She alleged the following:

1. That after three years of marriage, she and William quarreled almost
every day, with physical violence being inflicted upon her;
2. That William would shout invectives at her like putang ina mo, gago,
tanga, and he would slap her, kick her, pull her hair, bang her head against
concrete wall and throw at her whatever he could reach with his hand;
3. That William would also scold and beat the children at different parts of
their bodies using the buckle of his belt and that whenever she tried to stop
William from hitting the children, he would turn his ire on her and box her;
4. And that On December 14, 1995, a violent quarrel ensued and William hit
her on her head, left cheek, eye, stomach, and arms; when William hit her
on the stomach and she bent down because of the pain, he hit her on the
head then pointed a gun at her and asked her to leave the house.
 William for his part denied the charges and asserted
that since Lucita has abandoned the family, a decree of
legal separation should not be granted, following the Family
Code which provides that legal separation shall be denied
when both parties have given ground for legal separation.
 Issue:
Whether or not the Decree of Legal Separation should be
granted?
Held:
Yes. As between the detailed accounts given for Lucita and the
general denial for William, the Court gives more weight to those
of the former. The Court also gives a great amount of
consideration to the assessment of the trial court regarding the
credibility of witnesses as trial court judges enjoy the unique
opportunity of observing the deportment of witnesses on the
stand, a vantage point denied appellate tribunals.

Also without merit is the argument of William that since Lucita

has abandoned the family, a decree of legal separation should
not be granted, following Art. 56, par. (4) of the Family Code
which provides that legal separation shall be denied when both
parties have given ground for legal separation. The
abandonment referred to by the Family Code is abandonment
without justifiable cause for more than one year.As it was
established that Lucita left William due to his abusive conduct,
such does not constitute abandonment contemplated by the said
provision.
2. Homosexuality
MANUEL ALMELOR VS RTC AND LEONIDA ALMELOR
G.R. NO. 179620, AUGUST 26, 2008
Facts: After 11 years of marriage, Leonida Almelor filed a petition to
annul their marriage on the ground of psychological incapacity alleging
that, Manuel, her husband, concealed to her that he was a homosexual.

Her suspicions were first aroused when she noticed Manuel's peculiar
closeness to his male companions. She also found several pornographic
homosexual materials in his possession.Her worse fears were confirmed
when she saw Manuel kiss another man on the lips. At this point, Leonida
took her children and left their conjugal abode.

Manuel, for his part, denied his wife's allegations and asserted that his
wife's action is based on an ongoing family rivalry as between Leonida's
family-owned hospital and his.

The trial court nullified the marriage, not on the ground of Article 36, but
Article 45 of the Family Code.
ISSUE: W/N the marriage should be annulled based on
petitioner’s alleged homosexuality?
HELD:
No. The trial court declared that Leonida's petition for nullity had "no
basis at all because the supporting grounds relied upon can not legally
make a case under Article 36 of the Family Code." If so, the lower court
should have dismissed outright the petition for not meeting the
guidelines set in Molina. What Leonida attempted to demonstrate were
Manuel's homosexual tendencies by citing overt acts generally
predominant among homosexual individuals. She wanted to prove that
the perceived homosexuality rendered Manuel incapable of fulfilling the
essential marital obligations.

But instead of dismissing the petition, the trial court nullified the
marriage between Manuel and Leonida on the ground of vitiated
consent by virtue of fraud.

No sufficient proof was presented to substantiate the allegations that

Manuel is a homosexual and that he concealed this to Leonida at the
time of their marriage. The lower court considered the public perception
of Manuel's sexual preference without the corroboration of witnesses.
Also, it took cognizance of Manuel's peculiarities and interpreted it
against his sexuality.
Even assuming, ex gratia argumenti, that Manuel is a homosexual, the
lower court cannot appreciate it as a ground to annul his marriage with
Leonida. The law is clear - a marriage may be annulled when the
consent of either party was obtained by fraud, such as concealment of
homosexuality. Nowhere in the said decision was it proven by
preponderance of evidence that Manuel was a homosexual at the onset
of his marriage and that he deliberately hid such fact to his wife. It is the
concealment of homosexuality, and not homosexuality per se, that
vitiates the consent of the innocent party. Such concealment
presupposes bad faith and intent to defraud the other party in giving
consent to the marriage.

To reiterate, homosexuality per se is only a ground for legal separation.

It is its concealment that serves as a valid ground to annul a marriage.
Concealment in this case is not simply a blanket denial, but one that is
constitutive of fraud. It is this fundamental element that respondent
failed to prove.
3. Contracting by the respondent of a subsequent bigamous
marriage, whether in or outside the Philippines.
PASTOR B. TENCHAVEZ VS VICENTA F. ESCAÑO, ET AL.
G.R. NO. L-19671, NOVEMBER 29, 1965
FACTS: Vicenta Escaño, 27 years of age, exchanged marriage
vows with Pastor Tenchavez, 32 years of age, without the
knowledge of her parents, before a Catholic chaplain in 1948.
The marriage was the culmination of a previous love affair and
was duly registered with the local civil register. Vicenta and
Pastor planned to elope the following day but this was prevented
by Vicenta's parents.
The following morning, the Escaño spouses sought priestly
advice. Father Reynes suggested a recelebration to validate
what he believed to be an invalid marriage. The recelebration did
not take place. Vicenta continued living with her parents while
Pastor returned to his job in Manila.
On 24 June 1950, without informing her husband, she applied for a passport,
indicating in her application that she was single, that her purpose was to study,
and she was domiciled in Cebu City, and that she intended to return after two
years. The application was approved, and she left for the United States. On 22
August 1950, she filed a verified complaint for divorce against Pastor, which
was subsequently granted in the US courts.

In 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now
lives with him in California, and, by him, has begotten children. She acquired
American citizenship on 8 August 1958.

In 1955, Tenchavez initiated the proceedings at bar and asked for legal
separation and one million pesos in damages. Vicenta claimed a valid divorce
from plaintiff and an equally valid marriage to her present husband, Russell Leo
Moran; while her parents denied that they had in any way influenced their
daughter's acts, and counterclaimed for moral damages.

The appealed judgment did not decree a legal separation, but freed the plaintiff
from supporting his wife and to acquire property to the exclusion of his wife.
 ISSUE:
W/N a decree of legal separation should be granted?
HELD:
YES. In the Philippine jurisdiction, Vicenta Escaño's divorce and
second marriage are not entitled to recognition as valid for her
previous union to Tenchavez must be declared to be existent
and undissolved. It follows, likewise, that her refusal to perform
her wifely duties, and her denial of consortium and her desertion
of her husband constitute in law a wrong caused through her
fault, for which the husband is entitled to the corresponding
indemnity (Civil Code, Art. 2176). Neither an unsubstantiated
charge of deceit nor an anonymous letter charging immorality
against the husband constitute, contrary to her claim, adequate
excuse. Wherefore, her marriage and cohabitation with Russell
Leo Moran is technically "intercourse with a person not her
husband" from the standpoint of Philippine Law, and entitles
plaintiff-appellant Tenchavez to a decree of "legal separation
under our law, on the basis of adultery."
4. Sexual Infidelity
FROILAN GANDIONCO VS HON. PENARANDA
G.R NO. 79284, NOVEMBER 27, 1987
Facts: Private Respondent, Teresita, the legal wife of the
petitioner, filed a complaint against petitioner for legal separation
on the ground of concubinage, with a petition for support and
payment for damages. She also filed a criminal case against
petitioner for concubinage. Subsequently, an application for the
provisional remedy of support pendente lite was filed by Teresita
and which was granted by the lower court.

Petitioner contends that the civil action for legal separation and
the incidents consequent thereto, such as, application for
support pendente lite, should be suspended in view of the
criminal case for concubinage filed against him the private
respondent.
It is petitioner's position that such civil action arises from, or
is inextricably tied to the criminal action for concubinage, so
that all proceedings related to legal separation will have to
be suspended to await conviction or acquittal for
concubinage in the criminal case.
 Issue:
W/N conviction for concubinage will have to be first
secured before the action for legal separation can prosper?
HELD:
No. A civil action for legal separation, based on concubinage,
may proceed ahead of, or simultaneously with, a criminal action
for concubinage, because said civil action is not one "to enforce
the civil liability arising from the offense" even if both the civil and
criminal actions arise from or are related to the same offense.
Such civil action is one intended to obtain the right to live
separately, with the legal consequences thereof, such as, the
dissolution of the conjugal partnership of gains, custody of
offsprings, support, and disqualification from inheriting from the
innocent spouse, among others.

Also, a decree of legal separation, on the ground of

concubinage, may be issued upon proof by preponderance of
evidence in the action for legal separation. No criminal
proceeding or conviction is necessary.
5. Collusion
JOSE DE OCAMPO vs SERAFINA FLORENCIANO
G.R. No. L-13553, FEBRUARY 23, 1960
FACTS: Jose and Serafina were married in 1938. In 1951, Jose
discovered that Serafina maintained illicit relations with a certain
Arcalas. In 1955, plaintiff again surprised his wife in the act of having
illicit relations with another man.

Plaintiff, thereafter, signified his intention of filing a petition for legal

separation, to which defendant manifested her conformity provided she
is not charged with adultery in a criminal action. Accordingly, plaintiff
filed on July 5, 1955, a petition for legal separation.

When Serafina was questioned by the Fiscal upon orders of the court,
she reiterated her conformity to the legal separation. Interpreting these
facts virtually to mean a confession of judgment the Appellate Court
declared that under Art. 101, legal separation could not be decreed.
 ISSUE:
W/N the lower court's ruling to deny the petition for being
based on a confession of judgement is proper?
HELD:
NO. Article 100 of the Civil Code does not exclude, as evidence,
any admission or confession made by the defendant outside of
the court. It merely prohibits a decree of separation upon a
confession of judgment. Confession of judgment usually
happens when the defendant appears in court and confesses the
right of plaintiff to judgment or files a pleading expressly
agreeing to the plaintiff's demand.

Yet, even supposing that the statement of defendant before the

Fiscal that she "like also" to be legally separated from her
husband constituted practically a confession of judgment,
inasmuch as there is evidence of the adultery independently of
such statement, the decree may and should be granted, since it
would not be based on her confession, but upon evidence
presented by the plaintiff. What the law prohibits is a judgment
based exclusively or mainly on defendant's confession.
 ISSUE:
W/N there is collusion in the present case?
HELD:
No. In this case, there would be collusion if the parties had
arranged to make it appear that a matrimonial offense had
been committed although it was not, or if the parties had
connived to bring about a legal separation even in the
absence of grounds therefor.

Here, the offense of adultery had really taken place,

according to the evidence. The defendant could not have
falsely told the adulterous acts to the Fiscal, because her
story might send her to jail the moment her husband
requests the Fiscal to prosecute. She could not have
practiced deception at such a personal risk.
•
PETITION FOR LEGAL SEPARATION
Contents and Form
The petition for legal separation
shall:
(1)Allege the complete facts
constituting the cause of action.

(2) State the names and ages of the

common children of the parties,
specify the regime governing their
property relations, the properties
involved, and creditors, if any.

(3) Be verified and accompanied by

a certification against forum
shopping.
• (4) Be filed in six copies. The petitioner shall, within
five days from such filing, furnish a copy of the
petition to the City or Provincial Prosecutor and the
creditors, if any, and submit to the court proof of
such service within the same period.
PETITION FOR LEGAL SEPARATION
Where is the Venue?

If the petitioner or respondent is a

resident:
Family Court of the province or city where the
he has been residing for at least six months
prior to the date of filing.

If a non-resident respondent:

Family Court where he may be found in the
Philippines, at the election of the petitioner.
SUMMONS
Where summons can be served?

The service of summons shall be

governed by Rule 14 of the Rules of
Court and by the following rules:

Where the respondent cannot be located at his given address or

his whereabouts are unknown and cannot be ascertained by
diligent inquiry, service of summons may, by leave of court, be
effected upon him by publication once a week for two
consecutive weeks in a newspaper of general circulation
in the Philippines and in such place as the court may order. In
addition, a copy of the summons shall be served on respondent at
his last known address by registered mail or by any other
means the court may deem sufficient.
SUMMONS
What are the contents of the published
summons?

(1) title of the case;

(2) docket number;
(3) nature of the petition;
(4) principal grounds of the petition and the
reliefs prayed for, and
(5) a directive for respondent to answer
within thirty days from the last issue of
publication.
MOTION TO DISMISS
What are the grounds?

a.) Lack of jurisdiction over the subject

matter or
b.) Lack of jurisdiction over the parties;
NOTE!
Any other ground that might warrant a
dismissal of the case may be raised as an
affirmative defense in an answer.
ANSWER
When to file an Answer?

Within fifteen days from receipt of summons, or

within thirty days from the last issue of publication in
case of service of summons by publication.

NOTE: It must be verified by respondent himself and

not by counsel or attorney-in-fact.

What are the effects of failure to file an Answer?

The court shall not declare the respondent in default.
The court shall order the public prosecutor to
investigate whether collusion exists between the
parties.
INVESTIGATION REPORT OF
PUBLIC PROSECUTOR
What is Collusion In Legal Separation Or
Annulment Of Marriage?

It is an agreement between husband and wife for one of

them to commit, or to be represented in court as having
committed a matrimonial offense, or to suppress
evidence of a valid defense, for the purpose of enabling
the other to obtain a legal separation or annulment of
marriage, which may be express or implied from the
acts of the parties. Collusion is a ground for denial of
the action. (Ocampo v. Florenciano, 107 Phil. 35)
JOSE DE OCAMPO vs SERAFINA FLORENCIANO
G.R. No. L-13553, FEBRUARY 23, 1960
FACTS:

Jose and Serafina were married in 1938. In 1951, Jose discovered that
Serafina maintained illicit relations with a certain Arcalas. In 1955,
plaintiff again surprised his wife in the act of having illicit relations with
another man.

Plaintiff, thereafter, signified his intention of filing a petition for legal

separation, to which defendant manifested her conformity provided she
is not charged with adultery in a criminal action. Accordingly, plaintiff
filed on July 5, 1955, a petition for legal separation.

When Serafina was questioned by the Fiscal upon orders of the court,
she reiterated her conformity to the legal separation. Interpreting these
facts virtually to mean a confession of judgment the Appellate Court
declared that under Art. 101, legal separation could not be decreed.
 ISSUES:
1. W/N the lower court's ruling to deny the petition for being
based on a confession of judgement is proper?
2. W/N there is collusion in the present case?
1. NO. Article 100 of the Civil Code does not exclude, as
evidence, any admission or confession made by the defendant
outside of the court. It merely prohibits a decree of separation
upon a confession of judgment. Confession of judgment usually
happens when the defendant appears in court and confesses the
right of plaintiff to judgment or files a pleading expressly
agreeing to the plaintiff's demand.

Yet, even supposing that the statement of defendant before the

Fiscal that she "like also" to be legally separated from her
husband constituted practically a confession of judgment,
inasmuch as there is evidence of the adultery independently of
such statement, the decree may and should be granted, since it
would not be based on her confession, but upon evidence
presented by the plaintiff. What the law prohibits is a judgment
based exclusively or mainly on defendant's confession.
2. No. In this case, there would be collusion if the parties
had arranged to make it appear that a matrimonial offense
had been committed although it was not, or if the parties
had connived to bring about a legal separation even in the
absence of grounds therefor.

Here, the offense of adultery had really taken place,

according to the evidence. The defendant could not have
falsely told the adulterous acts to the Fiscal, because her
story might send her to jail the moment her husband
requests the Fiscal to prosecute. She could not have
practiced deception at such a personal risk.
INVESTIGATION REPORT OF
PUBLIC PROSECUTOR
Within one month after receipt of the court
order, the public prosecutor shall submit a report to
the court on whether the parties are in collusion and
serve copies on the parties and their respective
counsels, if any.

If the public prosecutor finds that collusion

exists:
 The PROSECUTOR shall state the basis thereof
in his report.
 The PARTIES shall file their respective
comments on the finding of collusion within ten
days from receipt of copy of the report.
 The COURT shall set the report for hearing and
if convinced that parties are in collusion, it shall
dismiss the petition.
INVESTIGATION REPORT OF
PUBLIC PROSECUTOR

If the public prosecutor reports that no

collusion exists:

The COURT shall set the case for pre-trial. It shall be

the duty of the public prosecutor to appear for the State
at the pre-trial.
CASE STUDY BY A SOCIAL
WORKER

When may the court may require a social

worker to conduct a case study and to submit
the corresponding report?

 At least three days before the pre-trial.

At any stage of the case whenever necessary.
PRE-TRIAL

Mandatory.

When does Pre-Trial commence?

On motion or motu proprio, the court shall set the

pre-trial after the last pleading has been served and
filed, or upon receipt of the report of the public
prosecutor that no collusion exists between the
parties on a date not earlier than six months from
date of the filing of the petition.
PRE-TRIAL
What are the contents of Notice of Pre-trial?

The notice of pre-trial shall contain:

(a) the date of pre-trial conference;

and

(b) an order directing the parties

to file and serve their respective
pre-trial briefs in such manner as shall ensure the
receipt thereof by the adverse party at least three
days before the date of pre-trial.
PRE-TRIAL
To whom Notice shall be served?
It shall be separately served on the:
a.) parties
b.) their respective counsels
c.) public prosecutor.

NOTE!
Notice of pre-trial shall be sent to the respondent
even if he fails to file an answer. In case of
summons by publication and the respondent failed
to file his answer, notice of pre-trial shall be sent to
respondent at his last known address.
PRE-TRIAL
What are the contents of Pre-Trial Brief?
The pre-trial brief shall contain the following:
(1) A statement of the willingness of the parties to
enter into agreements as may be allowed by law,
indicating the desired terms thereof;
(2) Their respective claims together with the
applicable laws and authorities;
(3) Admitted facts and proposed stipulations of
facts, as well as the disputed factual and legal
issues;
(4) All the evidence to be presented, including
expert opinion, if any, briefly stating or describing
the nature and purpose thereof;
PRE-TRIAL
What are the contents of Pre-Trial Brief?

(5) The number and names of the witnesses and

their respective affidavits; and
(6) Such other matters as the court may require.

NOTE!
Failure to file the pre-trial brief or to comply with its
required contents shall have the same effect as failure
to appear at the pre-trial under the succeeding
section.
PRE-TRIAL
What is the effect of failure to appear at the
Pre-Trial?
If the petitioner fails to appear personally:
Dismissed, UNLESS his counsel or a duly authorized
representative appears in court and proves a valid
excuse for the non-appearance of the petitioner.

If the respondent filed his answer but fails to appear:

The court shall proceed with the pre-trial and require
the public prosecutor to investigate the non-
appearance of the respondent and submit within
fifteen days a report to the court stating whether his
non-appearance is due to any collusion between the
parties.
Pre-Trial Conference
The court may refer the issues to a mediator who shall
assist the parties in reaching an agreement on matters
not prohibited by law.

The mediator shall render a report within one month from

referral which, for good reasons, the court may extend for
a period not exceeding one month.

In case mediation is not availed of or where it fails, the

court shall proceed with the pre-trial conference, on
which occasion it shall consider the advisability of
receiving expert testimony and such other matters as may
aid in the prompt disposition of the petition.
PRE-TRIAL ORDER
It shall be recorded.

When is it made?

Upon termination of the pre-trial, the court shall issue a

pre-trial order which shall recite in detail the matters
taken up in the conference, the action taken thereon,
the amendments allowed on the pleadings, and, except
as to the ground of legal separation, the agreements or
admissions made by the parties on any of the matters
considered, including any provisional order that may be
necessary or agreed upon by the parties.
PRE-TRIAL ORDER
If the action proceed to trial, the order shall
contain a recital of the following:

(1) Facts undisputed, admitted, and those which need not

be proved subject to Section 13 of this Rule;
(2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents, that have
been marked and will be presented;
(4) Names of witnesses who will be presented and their
testimonies in the form of affidavits; and
(5) Schedule of the presentation of evidence.
PRE-TRIAL ORDER
The pre-trial order shall also contain a directive to the
public prosecutor to appear for the State and take
steps to prevent collusion between the parties at any
stage of the proceedings and fabrication or
suppression of evidence during the trial on the merits.

The parties shall not be allowed to raise issues or

present witnesses and evidence other than those
stated in the pre-trial order. The order shall control
the trial of the case unless modified by the court to
prevent manifest injustice.
The parties shall have five days from receipt of the
pre-trial order to propose corrections or
modifications.
PROHIBITED COMPROMISE

What are the matters that cannot be

compromised?

(1) The civil status of persons;

(2) The validity of a marriage or of a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts; and
(6) Future legitime.
TRIAL
The presiding judge shall personally conduct the trial
of the case. No delegation of the reception of
evidence to a commissioner shall be allowed except
as to matters involving property relations of the
spouses.

The grounds for legal separation must be proved. No

judgment on the pleadings, summary judgment, or
confession of judgment shall be allowed.
TRIAL
The court may order the exclusion from the courtroom
of all persons, including members of the press, who do
not have a direct interest in the case.

When can it be ordered?

Upon determination that requiring a party to testify in
open court would:
not enhance the ascertainment of truth;
cause to the party psychological harm or inability
to effectively communicate due to
embarrassment, fear, or timidity;
violate the party's right to privacy; or
be offensive to decency.
TRIAL

No copy shall be taken nor any

examination or perusal of the records of
the case or parts thereof be made by
any person other than a party or counsel
of a party, except by order of the court.
MEMORANDA

The court may require the parties and the

public prosecutor to file their respective
memoranda in support of their claims within
fifteen (15) days from the date the trial is
terminated.
No other pleadings or papers may be
submitted without leave of court. After the
lapse of the period herein provided, the case
will be considered submitted for decision, with
or without the memoranda.
DECISION
What are the grounds for the denial of the
petition?

(1) Condonation or consent by the aggrieved party to

the commission of the offense or act complained of;
(2) Connivance in the commission of the offense-or
act constituting the ground for legal separation;
(3) Both parties have given ground for legal
separation;
(4) Collusion between the parties; or
(5) The action is barred by prescription.
a. Condonation
Bugayong vs Ginez
GR No. 10033, December 28, 1956
FACTS:

Benjamin Bugayong, a serviceman in the United States Navy, was married to

Leonila Ginez in 1949 at Asingan, Pangasinan. In July 1951, Benjamin began
receiving letters informing him of alleged acts of infidelity of his wife. In August
1952, Benjamin went to Pangasinan and looked for his wife whom he met in the
house of one Mrs. Malalang, Leonila's godmother. She came along with him and
both proceeded to the house of Pedro, Benjamin's cousin, where they stayed and
lived for 1 night and 1 day as husband and wife. The next day they passed the night
in their house as husband and wife. On the second day, Benjamin tried to verify
from his wife the truth of the information he received that she had committed
adultery but Leonila, instead of answering his query, merely packed up and left,
which he took as a confirmation of the acts of infidelity imputed on her.

Benjamin then filed a case for legal separation. Leonila filed an answer vehemently
denying the averments of the complaint and setting up affirmative defenses. After
Benjamin testified, Leonila's counsel moved for the dismissal of the complaint on
the ground of condonation.
 ISSUE:
Whether there was condonation between Bugayong and
Ginez that may serve as a ground for dismissal of the
action.
HELD:
YES.
Granting that infidelities amounting to adultery were
commited by the wife, the act of the husband in persuading
her to come along with him and the fact that she went with
him and together they slept as husband and wife deprives
him as the alleged offended spouse of any action for legal
separation against the offending wife because his said
conduct comes within the restriction of Article 100 of Civil
Code.
b. Consent
People vs Sensano and Ramos
58 PHIL 73
FACTS:

Ursula Sensano and Mariano Ventura were married and had a child whom the latter
allegedly abandoned when he went and stayed in Cagayan for three years without
letters or financial support to the former who worked hard for herself and her son
until she met the accused Marcelo Ramos who later took care of them.Ventura
charged Sensano and Ramos for adultery, found by the court guilty of the crime
charged and served their sentence.

Sensano after serving her sentenced and leaving her paramour made steps to
reconcile with and go back to her husband but to no avail - She and her child were
abandoned for the second time. Thus, they went back to her co-accused Ramos.
Despite the knowledge that she resumed living with her codefendant, her husband
did nothing to assert his right as her spouse. Instead, he went abroad for seven
years and presumably had completely abandoned them..

When Ventura returned home, he charged Sensano of adultery for the second time
in order to obtain divorce under Act No. 2710.
 ISSUE:
Whether or not Ramos can file adultery against his spouse
for the second time being the offended party.
HELD:

No. The Court concluded that the evidence in this case as

well as the conduct of Ramos showed that he consented to
the adulterous relations existing between the accused and
former co-defendant. He is therefore under the law not
authorized to institute the criminal proceeding.
When the husband knew that his wife resumed living with
her paramour and did nothing to interfere with their
relations or to assert his rights as husband, then this
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 a criminal
proceeding for adultery.
c. Collusion
Brown vs. Yambao,
102 Phil 168, October 18, 1957
FACTS:

William H. Brown filed a petition for legal separation from his wife, Juanita
Yambao, before the Court of First Instance of Manila on the ground of
adultery.

According to Brown, while he was interned by the Japanese invaders from

1942 to 1945 at the University of Santo Tomas internment camp, his wife
engaged in adulterous relations with a certain Carlos Field of whom she
begot a baby girl. Brown said that he learned of his wife’s misconduct only
in 1945 upon his release from internment and that they have lived
separately thereafter.

Brown is now praying for the confirmation of their liquidation agreement; for
custody of the children issued of the marriage; and that the defendant be
declared disqualified to succeed the plaintiff and for other remedy as might
be just and equitable.
Now, because Juanita Yambao failed to file her answer to the
petition in due time, the trial court declared her in default and
ordered the City Fiscal to represent the state and investigate, in
accordance with Article 101 of the New Civil Code, if collusion
exists between the parties.

During the cross-examination of the plaintiff by Assistant City

Fiscal Rafael Jose, it was found out that after the liberation,
Brown had lived martially with another woman and had begotten
children by her. Because of this fact, the trial court denied the
petition for legal separation on the ground that, while his wife’s
adultery was established, Brown had incurred a misconduct of
similar nature that barred his right of action under Article 100 of
the new Civil Code, and that there had been consent and
connivance in addition to Brown’s action for filing a petition for
legal separation prescribing.

Brown is now appealing the decision of the lower court before

the Supreme Court.
 ISSUE:
Whether or not the petition for legal separation should be
granted?
HELD:

In the case at bar, the SC said that the petition for legal
separation should not be granted it being evident that Brown is
also guilty of co-habiting with a woman other than his wife.
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. Where both spouses are offenders, a legal
separation cannot be claimed by either of them. Collusion
between the parties to obtain legal separation shall cause the
dismissal of the petition.”

In the case at bar, it is pursuant to the second sentence of the

aforementioned law, wherein Brown and Yumbao are both
offenders, hence, a legal separation cannot be granted.
 Pacete vs Carriaga
231 SCRA 321
FACTS:

Concepcion Alanis filed for the declaration of nullity of the marriage

between her erstwhile husband Enrico L. Pacete and one Clarita de la
Concepcion, as well as for legal separation and accounting and separation
of property. She averred that she was married to Pacete on 30 April 1938
and they had a child named Consuelo. She learned that Pacete
subsequently contracted a second marriage with Clarita de la Concepcion.
She and Pacete acquired vast property that he fraudulently placed the
several pieces of property either in his name and Clarita or in the names of
his children with Clarita and other “dummies;”

After having been summoned, the defendants repeatedly asked the court
for extension of filing for an answer which eventually resulted to being
declared in default. Five months after the petition was filed the court
granted the issuance of a Decree of Legal Separation and declared the
properties in question as conjugal properties of Alanis and Pacete which
were ordered forfeited in favor of Alanis. The court also nullified his
marriage to Clarita.
 ISSUE:
Whether or not the court gravely abused its discretion in
deciding the case
HELD:

Rule 18 of the Rules of Court which provides that no defaults in

actions for annulments of marriage or for legal separation. If the
defendant in an action for annulment of marriage or for legal
separation fails to answer, the court shall order the prosecuting
attorney to investigate whether or not collusion between the
parties exists, and if there is no collusion, to intervene for the
State in order to see to it that the evidence submitted is not
fabricated.

Article 103 of the Civil Code, now Article 58 of the Family Code,
further mandates that an action for legal separation must “in no
case be tried before six months shall have elapsed since the
filing of the petition,” obviously in order to provide the parties a
“cooling-off” period. In this interim, the court should take steps
toward getting the parties to reconcile.
DECISION

If the court renders a decision granting the petition, it

shall declare therein that the Decree of Legal
Separation shall be issued by the court only after full
compliance with liquidation under the Family Code.

However, in the absence of any property of the

parties, the court shall forthwith issue a Decree of
Legal Separation which shall be registered in the Civil
Registry where the marriage was recorded and in the
Civil Registry where the Family Court granting the legal
separation is located.
DECISION

The decision shall likewise declare that:

(1) The spouses are entitled to live separately from each

other but the marriage bond is not severed;
(2) The obligation of mutual support between the
spouses ceases; and
(3) The offending spouse is disqualified from inheriting
from the innocent spouse by intestate succession, and
provisions in favor of the offending spouse made in the
will of the innocent spouse are revoked by operation of
law.
DECISION

The parties, including the Solicitor General

and the public prosecutor, shall be served
with copies of the decision personally or by
registered mail. If the respondent
summoned by publication failed to appear in
the action, the dispositive part of the
decision shall also be published once in a
newspaper of general circulation.
APPEAL
Pre-condition.
No appeal from the decision shall be allowed unless the
appellant has filed a motion for reconsideration or new
trial within fifteen days from notice of judgment.

When may an aggrieved party or the Solicitor

General appeal?

Within fifteen days from notice of denial of the motion for

reconsideration or new trial, by filing a Notice of Appeal.

NOTE!
The appellant shall serve a copy of the Notice upon the
adverse parties.
LIQUIDATION, PARTITION AND
DISTRIBUTION, CUSTODY, AND
SUPPORT OF MINOR CHILDREN
Upon entry of the judgment granting the petition, or,
in case of appeal, upon receipt of the entry of
judgment of the appellate court granting the petition,
the Family Court, on motion of either party, shall
proceed with the liquidation, partition and distribution
of the properties of the spouses, including custody
and support of common children, under the Family
Code unless such matters had been adjudicated in
previous judicial proceedings.
ISSUANCE OF DECREE OF LEGAL
SEPARATION
When shall the court issue the Decree of Legal
Separation?

(1)After registration of the entry of judgment granting

the petition tor legal separation in the Civil Registry
where the marriage was celebrated and in the Civil
Registry where the Family Court is located; and

(2) registration of the approved partition and

distribution of the properties of the spouses, in the
proper Register of Deeds where the real properties are
located.
ISSUANCE OF DECREE OF LEGAL
SEPARATION
The court shall quote in the Decree the dispositive
portion of the judgment entered and attach to the
Decree the approved deed of partition.
REGISTRATION AND PUBLICATION
OF THE DECREE OF LEGAL
SEPARATION
Where should the Decree of Legal Separation be
registered?

The prevailing party shall cause the registration of the

Decree in the:

Civil Registry where the marriage was registered,

Civil Registry of the place where the Family Court is
situated
National Census and Statistics Office.
REGISTRATION AND PUBLICATION OF
THE DECREE OF LEGAL SEPARATION
NOTE!
The prevailing party shall report to the court compliance
with this requirement within thirty days from receipt of
the copy of the Decree.

In case service of summons was made by publication, the

parties shall cause the publication of the Decree once in a
newspaper of general circulation.

The registered Decree shall be the best evidence to prove

the legal separation of the parties and shall serve as
notice to third persons concerning the properties of
petitioner and respondent.
EFFECT OF DEATH OF A PARTY
At any stage of the proceedings before the entry of
judgment:
 The court shall order the case closed and terminated
without prejudice to the settlement of estate in the
proper proceedings in the regular courts.
After the entry of judgment:
 The same shall be binding upon the parties and their
successors in interest in the settlement of the estate in
the regular courts.
PETITION FOR REVOCATION OF
DONATIONS
Within five (5) years from the date the decision granting
the petition for legal separation has become final, the
innocent spouse may file a petition under oath the same
proceeding for legal separation to revoke the donations in
favor of the offending spouse.

The revocation of the donations shall be recorded in the

Register of Deeds of Deeds in the places where the
properties are located.
PETITION FOR REVOCATION OF
DONATIONS
Alienations, liens, and encumbrances registered in good
faith, before the recording of the petition for revocation in
the registries of property shall be respected.

After the issuance of the Decree of Legal Separation, the

innocent spouse may revoke the designation of the
offending spouse as a beneficiary in any insurance policy
even if such designation be stipulated as irrevocable. The
revocation or change shall take effect upon written
notification thereof to the insurer.
DECREE OF RECONCILIATION

If the spouses had reconciled, a joint manifestation

under oath, duly signed by the spouses, may be filed in the
same proceeding for legal separation.
DECREE OF RECONCILIATION
1.) If the reconciliation occurred while the
proceeding for legal separation is pending:
The court shall immediately issue an order terminating
the proceeding.

2.) If the reconciliation occurred AFTER the

rendition of the judgment granting the petition for
legal separation but BEFORE the issuance of the
Decree

3.) If the spouses reconciled AFTER the issuance of

the Decree
DECREE OF RECONCILIATION
If the reconciliation occurred AFTER the rendition of
the judgment granting the petition for legal
separation but BEFORE the issuance of the Decree:

The spouses shall express in their manifestation whether

or not they agree to revive the former regime of their
property relations or choose a new regime.

The court shall immediately issue a Decree of

Reconciliation declaring that the legal separation
proceeding is set aside and specifying the regime of
property relations under which the spouses shall be
covered.
DECREE OF RECONCILIATION
If the spouses reconciled AFTER the issuance of the
Decree:
The court, upon proper motion, shall issue a decree of
reconciliation declaring therein that the Decree is set
aside but the separation of property and any forfeiture of
the share of the guilty spouse already effected subsists,
unless the spouses have agreed to revive their former
regime of property relations or adopt a new regime.
REVIVAL OF PROPERTY REGIME OR
ADOPTION OF ANOTHER
In case of reconciliation AFTER the issuance of the
Decree:

The parties shall file a verified motion for revival of

regime of property relations or the adoption of another
regime of property relations in the same proceeding for
legal separation attaching to said motion their agreement
for the approval of the court.
REVIVAL OF PROPERTY REGIME OR
ADOPTION OF ANOTHER
The agreement which shall be verified shall specify
the following:

(1) The properties to be contributed to the restored or new

regime;

(2) Those to be retained as separate properties of each

spouse; and

(3) The names of all their known creditors, their addresses,

and the amounts owing to each.
REVIVAL OF PROPERTY REGIME OR ADOPTION
OF ANOTHER
NOTE!
The creditors shall be furnished with copies of the motion
and the agreement.

The court shall require the spouses to cause the

publication of their verified motion for two consecutive
weeks in a newspaper of general circulation.

After due hearing, and the court decides to grant the

motion, it shall issue an order directing the parties to
record the order in the proper registries of property within
thirty days from receipt of a copy of the order and submit
proof of compliance within the same period.
RELEVANT PROVISIONS OF THE
FAMILY CODE
Art. 58. An action for legal separation shall in no case be
tried before six months shall have elapsed since the filing
of the petition.

Art. 59. No legal separation may be decreed unless the

Court has taken steps toward the reconciliation of the
spouses and is fully satisfied, despite such efforts, that
reconciliation is highly improbable.

Art. 61. After the filing of the petition for legal separation,
the spouses shall be entitled to live separately from each
other.
RELEVANT PROVISIONS OF THE
FAMILY CODE
Art. 63. 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 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);
RELEVANT PROVISIONS OF THE FAMILY
CODE
Art. 63. The decree of legal separation shall have the
following effects:

(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.
Art. 176 : illegitimate children shall be under the parental
authority of their mother.

Art. 213 : “[n]o child under seven years of age shall be

separated from the mother, unless the court finds
compelling reasons to order otherwise.
PROVISIONAL ORDERS
A.M. No. 02-11-12-SC RE: PROPOSED
RULE ON PROVISIONAL ORDERS (March
4, 2003)
PROVISIONAL ORDERS
What is a Provisional Order?

It is a court order that is made during a trial or a law

suit and is only temporary until final outcome is delivered.
PROVISIONAL ORDERS
When is it issued and how it is enforced?

Upon receipt of a verified petition for declaration of

absolute nullity of void marriage or for annulment of
voidable marriage, or for legal separation, and at any time
during the proceeding, the court, motu proprio or upon
application under oath of any of the parties, guardian or
designated custodian, may issue provisional orders and
protection orders with or without a hearing. These orders
may be enforced immediately, with or without a bond, and
for such period and under such terms" and conditions as
the court may deem necessary.
SPOUSAL SUPPORT
What are the Rules in determining
support for the spouses?
SPOUSAL SUPPORT
What are the Rules in determining support
for the spouses?

(a) In the absence of adequate provisions in a written

agreement between the spouses, the spouses may be
supported from the properties of the absolute community
or the conjugal partnership.
(b) The court may award support to either spouse in such
amount and for such period of time as the court may deem
just and reasonable based on their standard of living during
the marriage.
SPOUSAL SUPPORT
(c) The court may likewise consider the
following factors:

1) whether the spouse seeking support is the custodian of

a child whose circumstances make it appropriate for
that spouse not to seek outside employment;
2) the time necessary to acquire sufficient education and
training to enable the spouse seeking support to find
appropriate employment, and that spouse's future
earning capacity;
3) the-duration of the marriage;
SPOUSAL SUPPORT
(c) The court may likewise consider the
following factors:

4) the comparative financial resources of the spouses,

including their comparative earning abilities in the labor
market;
5) the needs and obligations of each spouse;
6) the contribution of each spouse to the marriage,
including services rendered in home-making, child care,
education, and career building of the other spouse;
7) the age and health of the spouses;
SPOUSAL SUPPORT
(c) The court may likewise consider the
following factors:
8) the physical and emotional conditions of the spouses;
9) the ability of the supporting spouse to give support,
taking into account that spouse's earning capacity,
earned and unearned income, assets, and standard of
living; and
10) any other factor the court may deem just and equitable.

(d) The Family Court may direct the

deduction of the provisional support from
the salary of the spouse.
CHILD SUPPORT

The common children of the spouses shall be

supported from the properties of the absolute
community or the conjugal partnership.

Subject to the sound discretion of the court, either

parent or both may be ordered to give an amount
necessary for the support, maintenance, and
education of the child. It shall be in proportion to the
resources or means of the giver and to the
necessities of the recipient.
CHILD SUPPORT
In determining the amount of provisional
support, the court may likewise consider the
following factors:
(1) the financial resources of the custodial and non-
custodial parent and those of the child;
(2) the physical and emotional health of the child and
his or her special needs and aptitudes;
(3) the standard of living the child has been
accustomed to;
(4) the non-monetary contributions that the parents
will make toward the care and well-being of the
child.
CHILD SUPPORT
NOTE!
The Family Court may direct the deduction of the
provisional support from the salary of the parent.
CHILD CUSTODY
In determining the right party or person to whom the
custody of the child of the parties may be awarded pending
the petition, the court shall consider the best interests of
the child and shall give paramount consideration to the
material and moral welfare of the child.
CHILD CUSTODY
Factors to be considered:

a) the agreement of the parties;

b) the desire and ability of each parent to foster an open
and loving relationship between the child and the other
parent;
c) the child's health, safety, and welfare;
d) any history of child or spousal abase by the person
seeking custody or who has had any filial relationship
with the child, including anyone courting the parent;
e) the nature and frequency of contact with both parents;
CHILD CUSTODY
Factors to be considered:

f) habitual use of alcohol or regulated substances;

g) marital misconduct;
h) the most suitable physical, emotional, spiritual,
psychological and educational environment; and
i) the preference of the child, if over seven years of age
and of sufficient discernment, unless the parent chosen
is unfit.
CHILD CUSTODY
Order of preference:

1) to both parents jointly;

2) to either parent taking into account all relevant
considerations under the foregoing paragraph,
especially the choice of the child over seven years of
age, unless the parent chosen is unfit;
3) to the surviving grandparent, or if there are several of
them, to the grandparent chosen by the child over
seven years of age and of sufficient discernment, unless
the grandparent is unfit or disqualified;
CHILD CUSTODY
Order of preference:

4) to the eldest brother or sister over twenty-one years of

age, unless he or she is unfit or disqualified;
5) to the child's actual custodian over twenty-one years of
age, unless unfit or disqualified; or
6) to any other person deemed by the court suitable to
provide proper care and guidance for the child.
CHILD CUSTODY
• The custodian temporarily designated by the court shall
give the court and the parents five days notice of any plan
to change the residence of the child or take him out of his
residence for more than three days provided it does not
prejudice the visitation rights of the parents.
VISITATION RIGHTS

Appropriate visitation rights shall be provided to the parent

who is not awarded provisional custody unless found unfit
or disqualified by the court.
HOLD DEPARTURE ORDER

Pending resolution of the petition, no child of the parties

shall be brought out of the country without prior order
from the court.
HOLD DEPARTURE ORDER

The court, motu proprio or upon application under oath,

may issue ex-parte a hold departure order, addressed to
the Bureau of Immigration and Deportation, directing it
not to allow the departure of the child from the
Philippines without the permission of the court.

The Family Court issuing the hold departure order shall

furnish the Department of Foreign Affairs and the Bureau
of Immigration and Deportation of the Department of
Justice a copy of the hold departure order issued within
twenty-four hours from the time of its issuance and
through the fastest available means of transmittal.
HOLD DEPARTURE ORDER
The hold-departure order shall contain the
following information:

(a) the complete name (including the middle name), the

date and place of birth, and the place of last residence
of the person against whom a hold-departure order has
been issued or whose departure from the country has
been enjoined;
(b) the complete title and docket number of the case in
which the hold departure was issued;
(c) the specific nature of the case; and
(d) the date of the hold-departure order.
HOLD DEPARTURE ORDER
If available, a recent photograph of the person against
whom a hold-departure order has been issued or whose
departure from the country has been enjoined should also
be included.

The court may recall the order motu proprio or upon

verified motion of any of the parties after summary
hearing, subject to such terms and conditions as may be
necessary for the best interests of the child.
ORDER OF PROTECTION
The court may issue an Order of Protection
requiring any person:

(a) to stay away from the home, school, business, or

place of employment of the child, other parent or
any other party, and to stay away from any other
specific place designated by the court;
(b) to refrain from harassing, intimidating, or threatening
such child or the other parent or any person to
whom custody of the child is awarded;
(c) to refrain from acts of commission or omission that
create an unreasonable risk to the health, safety, or
welfare of the child;
ORDER OF PROTECTION
The court may issue an Order of Protection
requiring any person:

(d) to permit a parent, or a person entitled to visitation

by a court order or a separation agreement, to visit the
child at stated periods;
(e) to permit a designated party to enter the residence
during a specified period of time in order to take
persona! belongings not contested in a proceeding
pending with the Family Court;
(f) to comply with such other orders as are necessary
for the protection of the child.
ADMINSTRATION OF COMMON
PROPERTY

If a spouse without just cause abandons the other or fails

to comply with his or her obligations to the family, the
court may, upon application of the aggrieved party under
oath, issue a provisional order appointing the applicant or
a third person as receiver or sole administrator of the
common property subject to such precautionary
conditions it may impose.
CALDERON VS ROXAS
G.R. No. 185595. January 9, 2013
FACTS:
Ma. Carminia Calderon filed a complaint for the declaration
of nullity of her marriage to Jose Antonio Roxas on the
ground of psychological incapacity. In the course of the
trial, the court issued an order granting Carminia’s
application for support pendente lite.
Her husband filed a Motion to Reduce Support citing,
among other grounds, that the monthly support for the
children as fixed by the court was higher that his monthly
salary as City Counselor. The court issued an order
granting the motion to reduce support and denying
Carminia’s motion for spousal support. Carminia
challenged the said order.
ISSUE:

Whether Carminia may validly challenge the order by the

court pertaining to the support pendent lite.
HELD:
No. The assailed orders relative to the incident of support
pendente lite and support in arrears, as the term suggests,
were issued pending the rendition of the decision on the
main action for declaration of nullity of marriage, and are
therefore, interlocutory. They did not finally dispose of the
case nor did they consist of a final adjudication of the
merits of petitioner’s claims as the ground of psychological
incapacity and other incidents as child custody, support and
conjugal assets. Unlike a final judgment or order, which is
appealable, an interlocutory order may not be questioned
on appeal except only as part of an appeal that may
eventually be taken from the final judgment rendered in the
case.
The Rules of Court provide for the provisional remedy of
support pendent lite which may be availed of at the
commencement of the proper action or proceedings, or at
any time prior to the judgment or final order.
Provisional remedies are writs and processes available
during the pendency of the action which may be resorted to
by a litigant to preserve and protect certain rights and
interests therein pending rendition, and for purposes of the
ultimate effects, of a final judgment in the case. They are
provisional because they constitute temporary measures
availed of during the pendency of the action, and they are
ancillary because they are mere incidents in and are
dependent upon the result the main action. The subject
orders on the matter of support pendent lite are but an
incident to the main action for declaration of nullity of
marriage.
DINAH TONOG VS CA
Facts:

In 1989, Dinah B. Tonog gave birth to Gardin Faith Belarde

Tonog, her illegitimate daughter with Edgar V. Daguimol. A
year after the birth of Gardin, Dinah left for the USA where she
found a work as a registered nurse. Gardin was left in the care
of her father and paternal grandparents.

Edgar filed a petition for guardianship over Gardin in the RTC

of Quezon City. In March 1992, the court granted the petition
and appointed Edgar as legal guardian of Gardin.
•
In May 1992, Dinah filed a petition for relief from
judgment. She averred that she learned of the
judgment only on April 1, 1992. The trial court set
aside its original judgment and allowed Dinah
to file her opposition to Edgar's petition. Edgar, in turn,
filed a motion for reconsideration.

In 1993, Dinah filed a motion to remand custody of

Gardin to her.

In 1994, the trial court issued a resolution denying

Edgar's motion for reconsideration and granting
Dinah's motion for custody of Gardin. Dinah moved for
the immediate execution of the resolution.
Dinah appealed to the Supreme Court, contending that she
is entitled to thecustody of the minor, Gardin, as a matter of
law. First, as the mother of Gardin Faith, the law confers
parental authority upon her as the mother of the
illegitimateminor. Second, Gardin cannot be separated
from her since she had not, as of then, attained the age of
seven. Employing simple arithmetic however, it appears
that Gardin Faith is now twelve years old.
Issue:

Who is entitled to the temporary custody of the child

pending the guardianship proceeding?
Held:

In custody disputes, it is axiomatic that the

paramount criterion is the welfare and well-being of the
child.
The general rule is recommended in order to avoid many a
tragedy where a mother has seen her baby torn away from
her. No man can sound the deep sorrows of a mother who
is deprived of her child of tender age. The exception
allowed by the rule has to be for “compelling reasons” for
the good of the child.
In the case at bar, we are being asked to rule on
the temporary custody of the minor, Gardin Faith, since it
appears that the proceedings for guardianship before the
trial court have not been terminated, and no
pronouncement has been made as to who should have
final custody of the minor. Bearing in mind that the welfare
of the said minor as the controlling factor, we find that
the appellate court did not err in allowing her father to
retain in the meantime parental custody over
her. Meanwhile, the child should not be wrenched from her
familiar surroundings, and thrust into a strange
environment away from the people and places to which she
had apparently formed an attachment.