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VI.

LAW ON SEPARATION OF THE SPOUSES


A. Concepts of separation & divorce
Benedicto v. De la Rama
1. Separation in fact, FC 238-248, 101(3)
Villanueva v Chiong
Florentino and Elisera were married in 1960 but have
been separated in fact since 1975. In 1985, Florentino
sold to the Villanuevas the western portion of the lot
they acquired during the marriage. Thereafter, Florentino
allowed them to occupy the lot and after their last
instalment payment, they demanded from Florentino the
execution of a deed of sale in their favour. Elisera
however refused to sign the deed of sale. On 1992,
Florentino executed the deed of absolute sale in favour
of the Villanuevas. On Jul.19,2000, the RTC annulled
the said sale and ordered the Villanuevas to vacate the
lot and remove all improvements therein. The
Villanuevas contend that the lot belongs exclusively to
Florentino because he and Elisera were already
separated in fact at the time of the sale.
Held: the separation in fact does not affect the conjugal
nature of the lot and it does not also prejudiced Eliseras
interest over it. Under Art.178 of CC, the separation in
fact between husband and wife without judicial approval
shall not affect the conjugal partnership. And when the
parties are separated in fact and without the wifes
consent, the husband alienates or encumbers conjugal
property prior to the effectivity of FC, the same is not
void, but merely voidable. Art.173of CC provides that
the wife may, during the marriage, and within 10yrs.
from the transaction questioned, ask the courts for the
annulment of any contract of the husband entered into
without her consent.
2. Agreements to separate, FC 1, NCC 221 (1)
Espinosa v Omana
Espinosa and Elena Marantal sought Atty. Omaas legal
advice on whether they could dissolve their marriage and
live separately. Omana prepared a document entitled
Kasunduan Ng Paghihiwalay. Espinosa and Marantal
started implementing the conditions of the said contract.
However, Elena took custody of all their children and
took possession of most of the conjugal property.
Espinosa sought the advice of Glindo, his fellow
employee who is a law graduate, who informed him that
the contract executed by Omana was not valid.
Issue: whether the Kasunduaan ng Paghihiwalay is
valid?
Held: SC ruled that the extrajudicial dissolution of the
conjugal partnership without judicial approval is void.
The Court has also ruled that a notary public should not
facilitate the disintegration of a marriage and the family

by encouraging the separation of the spouses and


extrajudicially dissolving the conjugal partnership,
which is exactly what Omaa did in this case.
3. Absolute divorce
(a) Divorce under the Family Code
FC 26, paragraph 2
Gorayeb v Hashim
While the civil liability for support claimed by Gorayeb
was still undetermined, Nadjib sought refuge in the state
of Nevada and on Dec.1,1924, he obtained a decree of
divorce against Gorayeb. He then returned to the
Philippines on and Oct.1925, Gorayeb filed a motion
alleging that Nadjib had failed to pay the pension of
P500/mnth, which had been awarded to her in the
decision of Dec.24,1923. But Nadjib pleaded the decree
of divorce obtained by him from the Nevada court,
claiming that the said decree had the effect of dissolving
the bonds of matrimony between him and Gorayeb and
of relieving him from all liability to pay the pension
claimed. The trial court found that the civil obligation
created by the previous orders of the court remained in
full force and effect notwithstanding the decree of
divorce. It ruled that the decree cannot be recognized by
our courts.
Held: the decree of divorce is of no force in our
jurisdiction. If a spouse leaves the family domicile and
goes to another State for the sole purpose of obtaining
divorce, and with no intention of remaining, his
residence there is not sufficient to confer jurisdiction on
the court of that State. Thus, there is no justification for
the defendants failure to pay alimony.
Tenchavez v. Escao
Van Dorn v. Romillo
Somera v. Pilapil
Fujiki v Marinay
(b) Divorce under the Muslim Code, MC 45-55
Llave v Republic
Zamoranos v People
B. Concept of legal separation, compare with NCC 97
1. Grounds for legal separation Art. 55 FC, RA 9262
A.M. No. 02-11-11-SC. March 4, 2003
(a) Sexual infidelity or perversion
FC 55(8)
NCC 36
RPC 333 & 334
RPC 247
Goitia v. Campos-Rueda
Gandionco v. Pearanda
On May 29, 1986(at RTC of Misamis Oriental) , Teresita filed a
complaint against Froilan for legal separation on the
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ground of concubinage, with a petition for support and


payment of damages. On October 13, 1986(at MTC Gen.Santos City),
she again filed a complaint against petitioner for
concubinage. On Nov. 14, 1986, she filed an application for
the provisional remedy of support, pending a decision in
the action for legal separation. With this, Froilan
contends that the civil action for legal separation and the
incidents consequent thereto should be suspended in
view of the criminal case for concubinage filed against
him.
Held: 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 offspring, support, and disqualification from
inheriting from the innocent.
Kalaw v Fernandez
After the birth of their 4 th child, Tyrone had an affair
which caused Malyn to leave the conjugal home together
with their children. 9 yrs after their separation, Tyrone
filed a petition for declaration of nullity of marriage on
the basis of Malyns alleged psychological incapacity to
perform and comply with the essential marital
obligations at the time of the celebration of their
marriage. He alleged among others that Malyn
committed adultery that he himself had allegedly
witnessed.
Held: Tyrone has not sufficiently proven Malyns sexual
infidelity. Even assuming that it were true, immaturity
and irresponsibility in performing marital and familial
obligations, sexual infidelity per se, and acrimony are
not grounds for psychological incapacity that voids a
marriage. Only for legal separation.
Republic v Quintos
(b) Drug addiction, habitual alcoholism, lesbianism or
homosexuality
FCC 55 (5) and (6) compare with FC 46(4)
Almelor v RTC
Campos v Campos
Aida and Judge Campos were married on Sept.9, 1981. On
July 16,2008, Judge Campos filed a petition for declaration
of nullity of marriage alleging that they are both
psychologically incapacitated. He also alleged that he is
a homosexual who could not be intimate with his wife
unless he imagined he was with another man. Aida
denied the allegation and alleged that the judge wanted

their marriage annulled so that he could marry another


woman. Aida instead filed a petition for legal separation.
Issue: whether respondent can be charged for
dishonesty?
Held: no. the fact that respondent got married and had
children is not proof against his claim of homosexuality.
It is possible that respondent was only suppressing or
hiding his true sexuality.
(c) Attempt on the life of the other spouse
FC 55(9), compare with NCC 97(2)
Rep. Act 9262
(d) Abandonment
FC Art. 55 (10)
FC 101 par. 3, compare with separation in fact
Republic v Quintos
(e) Other grounds
FC 55 (1)
Goitia vs Campos-Rueda
Kalaw v Fernandez
2. Who can ask for legal separation
FC 55, compare with NCC 99
3. When may petition be filed
FC 57, compare with NCC 102, NCC 99
Lapuz v. Eufemio
On Aug.18,1953, Carmen filed a petition for legal
separation against Eufemio alleging that he abandoned
her on 1943. She also alleged that she discovered her
husband cohabiting with Go Hiok sometime in March
1949. In an answer, Eufemio counter-claimed for the
declaration of nullity of his marriage with Carmen on the
ground of his prior and subsisting marriage with Go. But
before the trial could be completed, Carmen died in a
vehicular accident (May 31,1969). On June 9, 1969, Eufemio
moved to dismissed the petition for legal separation on
the grounds that the petition was filed beyond the 1-yr
period provided in Art.102,CC and that the death of
Carmen abated the action for legal separation. The
counsel for Carmen moved to substitute the deceased by
her father Macario however, the court dismissed the
case.
Issue: does the death of Carmen before the final decree
in an action for legal separation, abate the action?
Held: an action for legal separation is purely personal
and only the innocent spouse may claim legal separation.
The death of one party to the action causes the death of
the action itself.
Matubis v. Praxedes
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Socorro and Zoilo were married on Jan.10,1943 but because


of failure to agree on how to live as husband and wife,
they agreed to live separately on May 30,1944. They entered
into an agreement on which they state that neither of
them can prosecute the other for adultery/concubinage or
any other crime or suit arising from separation. On
Jan.1955, Zoilo started to cohabit with Asuncion and
they deported themselves as husband and wife. Socorro
filed a complaint(Apr.24,1956) for legal separation against
Zoilo on the ground of abandonment and concubinage.
The trial court dismissed the complaint for 2 reasons,
among others, Art.102 of CC provides that an action for
legal separation cannot be filed except within 1yr. from
and after the date on which the plaintiff became
cognizant of the cause and within 5yrs. from and after
the date when the cause occurred.
Held: the complaint was filed outside the periods
provided by Art.102 of CC. Socorri came to know of the
concubinage in Jan.1995 and instituted the complaint
only on Apr.24,1946. The complaint was filed against
more than 1yr. after she became aware of the illegal
cohabitation.
People v. Zapata
A complaint for adultery was filed by Andres against
Guadalupe(his wife) and Dalmacio(Guadalupes
paramour), for cohabiting and having repeated sexual
intercourse from 1946 up to the date of his filing of the
complaint(Mar.14,1947). On the same court, Andres filed
another complaint of adultery against his wife and
Dalmacio from Mar. 21,1947 to Sept.17,1948the date of the
filing of the 2nd complaint. The defendants filed a motion
to quash the complaint on the ground that they would be
twice put in jeopardy for the same offense.
Held: each sexual intercourse constitutes a crime of
adultery. There is no constitutional or legal provision
which bars the filing of as many complaints for adultery
as there were adulterous acts committed, each
constituting one crime.
4. Court procedure in legal separation
FC 58-60;
Sec 19, RA 9262
A.M. No. 02-11-11-SC. March 4, 2003
Araneta vs Concepcion
Luis brought an action for legal separation against
Emma on the ground of adultery. Emma then filed an
omnibus petition, among others, to secure the custody of
their minor children, a monthly support for herself and
children. Luis claims on the other hand that there are no
conjugal assets and that Emma is not entitled to support
because of her infidelity and that she was able to support
herself. Respondent judge then resolved the omnibus
petition, granting the custody of the children to Emma

and a monthly allowance for support for her and the


children. The respondent judge refused to reconsider the
order relying on the prohibition contained in Art.103 of
CC[an action for legal separation shall in no case be tried before
6months shall have elapsed since the filing of the petition.] The
judge stated that the case cannot be tried within the
period of 6mos.from the filing of the complaint.
Held: the period of 6 months fixed in Art.103 of CC is
intended as a cooling off period to make possible a
reconciliation between the spouses. But this does not
have the effect of overriding other provisions such as the
determination of the custody of the children, alimony,
and support pendent lite, according to the circumstances.
Evidence not affecting the cause of the separation, like
the actual custody of the children, the means conducive
to their welfare and convenience during the pendency of
the case, these should be allowed that the court may
determine which is best for their custody.
Ocampo v Florenciano
Jose and Serafina got married on April 5, 1938.
Sometime in March 1951, Jose discovered that his wife
was maintaining illicit relations with Arcalas. He also
discovered that Serafina was going out with several
other men. After Ocampo caught his wife in the act of
having illicit relations withNelsom Orzame on June 18,
1955, he signified his intention of filing a petition for
legal separation. Serafina conformed to his intention
provided that she will not be charged with adultery in a
criminal action. Jose filed a petition for legal separation
but CFI dismissed it holding there was confession
of judgment, plus condonation or consent to the adultery
and prescription which was AFFIRMED by the CA. CA
ruled that with regard to the adultery of Serafina to
Arcalas, Joses right to legal separation had prescribed
because his action was not filed within 1yr. from the
discovery of infidelity (art.102,NCC). As to the adultery
with Nelson Orzame, after discovery of such, Jose
expressed his wish to file a petition for legal separation
which the defendant had readily agreed to. Before the
fiscal, the defendant even reiterated her conformity to
the legal separation and admitted having sexual relations
with Nelson Orzame. CA interpreted such facts as a
confession of judgment under Art.101 and thus, legal
separation could not be decreed.
Issue: Whether or not a decree for legal separation be
granted?
Held: As the Court understand the article, it 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
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agreeing to the plaintiffs demand. Supposing the


statement of defendant constitutes a confession
of judgment, inasmuch as there is evidence of the
adultery independent 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 defendants confession.
[Collusion in divorce or legal separation means the agreement
between husband and wife for one of them to commit, or to
appear to commit, or to be represented in courts as having
committed, a matrimonial offense, or to suppress evidence of a
valid defense, for the purpose of enabling the other to obtain a
divorce. ]

Lapuz vs Eufemio
Samosa vs Vamenta, Jr.,
On June 18,1971, Lucy filed for legal separation against
Clemente on the ground of concubinage and attempt
against her life. She likewise sought the issuance of writ
of preliminary mandatory injuction for the return to her
of what she claimed to be her paraphernal and exclusive
property. On Sept. 3,1971, Lucy received an order of
respondent Judge granting the motion of Ramos to
suspend the hearing of the petition for a writ of
mandatory prelim.injunction.
Issue: whether Art.103 of CC prohibits the hearing of an
action for legal separation before the lapse of 6months
from the filing of the petition, would likewise preclude
the court from acting on a motion for preliminary
mandatory injunction applied for as an ancillary remedy
to such a suit?
Held: the question of management of exclusive property
need not be left unresolved even during the 6-month
cooling off period. **at any rate, from the time of the
issuance of the order complained of on Aug.4,1971,
more than 6mos. 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
prelim.mandatory injunc.
Pacete v. Cariaga
On Oct. 29,1979, Concepcion filed a complaint for the
declaration of nullity of marriage between her husband
Enrico and Clarita, as well as for legal separation
between her and Enrico. She alleged that while married
to her (Apr.30,1938), Enrico contracted a 2nd marriage(1948).
The defendants were served with summons on
Nov.15,1979 then filed for an extension of 20 days from
Nov.30,1979, within which to file an answer. The said
motion was granted and on Dec.18,1979, they again filed a
2nd motion for an extension of another 30 days but the
court granted only 20days to be counted from Dec.20,1979
to Jan.9,1980. The order was mailed to the defendants
counsel on Jan.11,1980. Still unaware of the court order,

they again filed another motion for extension of 15days


counted from the expiration of the 30-day period
previously sought. On Feb.6,1980, the court denied the last
motion on the ground that it was filed after the original
period given as first extension had expired. Concepcion
thereupon filed a motion to declare the defendants in
default, which the court granted. Hence, a special civil
action for certiorari was filed by Enrico and Clarita.
Held: under ordinary circumstances, the petition would
have outrightly been dismissed. However, a petition for
certiorari is allowed when the default order is improperly
declared; and in an action for legal separation, a default
order is not legally sanctioned.
5. Effect of pendency of the petition, FC 61-62
(a) cooling-off period, FC 58
(b) right of consortium, FC 61 par. 1
(c) administration of property, FC 61 par. 2
De la Via v. Villareal
On Sept.17,1917, Narcisa filed a complaint against Diego
alleging that since 1913 up to the date of the complaint,
Diego had been committing acts of adultery with Ana
and that he ejected Narcisa from the conjugal home.
Narcisa now prayed for a decree of divorce, partition of
the conjugal property and alimony pendente lite in the
sume of P400/month. Subsequent to the filing of the
complaint, Narcisa presented a motion alleging that
since the filing of her complaint, she had personal
knowledge that Diego was trying to alienate/encumber
the property belonged to the conjugal partnership.
Issue: may a married woman ever acquire a
residence/domicile separate from that of her husband
during the existence of the marriage?
Held: where the husband has given cause for divorce, the
wife may acquire anther and separate domicile from that
of her husband. And if the wife can acquire a separate
residence when her husband consents or acquiesces,
there is no reason why the law will not allow her to do
so when the husband unlawfully ejects her from the
conjugal home in order that he may freely indulge in his
illicit relations with another woman.
Sabalones v. CA
As a member of diplomatic service assigned to different
countries, Samson left to Remedios the administration of
some of their conjugal properties for 15yrs. when
Samson retired in 1985, he came back to the Philippines
but not to his wife and their children. 4yrs. later, he filed
an action for judicial authorization to sell the building
and lot located in Greenhills San Juan, belonging to the
conjugal partnership.Remedios opposed and filed a
counterclaim for legal separation. She alleged that the
house in Greenhills was being occupied by her and their
children and that they were depending for their support
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on the rentals from another conjugal property in Forbes


Park. Remedios prayed for the grant of legal separation
and order the liquidation of their conjugal properties,
with forfeiture of her husbands share because of his
adultery. The trial court decreed the legal separation after
finding that Samson contracted a bigamous marriage.
The decision was appealed and during the pendency of
the case, Remedios filed a motion for issuance of
preliminary injunction to enjoin Samson from interfering
with the administration of their properties. CA granted
the motion. Samson now assails the order, arguing that
since the law provides(Art.124,FC) for a joint admin.of
the conjugal properties of husband and wife, no
injunctive relief can be issued against one or the other.
He further argued that the CA failed to appoint an
administrator of the conjugal assets as mandated by
Art.61,FC.
Held: while there is no formal designation of the
administrator, such designation was implicit in the
decision of the trial court denying the petitioner any
share in the conjugal properties. The designation was
approved by CA when it issued in favour of Remedios
the preliminary injunction. Injunction is available when
there is enough evidence to raise the apprehension that
entrusting the management of the conjugal estate to the
offending spouse may result in its improvident
disposition to the detriment of his wife and children. But
it was stressed that the injunction has not permanently
installed Remedios as the administrator of the whole
mass of conjugal assets. It has merely allowed here to
continue administering the properties in the meantime,
pending the express designation of the administrator in
acc. With Art.61,FC.
(d) Support and custody pendente lite
FC 62 cf. FC 49, FC 198
Yangco v. Rhode
Luis filed a petition for a writ of prohibition alleging that
a complaint has been filed by Victorina Obin against
him, praying that she be declared the lawful wife of Luis
and that she be granted a divorce, an allowance for
alimony, and atty.s fees during the pendency of the suit.
The respondent judge directed the allowance of alimony
pendente lite in favour of Victorina, notwithstanding the
fact that the existence of the marriage is not clear or free
from doubt.
Held: a suit for alimony could not prosper upon the mere
opinion of the judge expressed, not in a final judgment
causing status, but in an interlocutory order which was
no other purpose than to facilitate the continuance of the
trial. The Court ruled that the respondent judge was
without jurisdiction to grant alimony when the right to
claim alimony had not accrued in accordance with the
provision of CC. CC only grants the rights to alimony to

a wife. When the action for the support or alimony is


brought by a woman who alleges that she is a wife, it is
necessary for her to prove possession of the civil status
of a spousethat is, a marriage, without which one has
no right to the title to husband or wife.
De la Via v. Villareal
Araneta v. Concepcion
Ramos v. Vamenta
Lerma v. CA
Teodoro Lerma and Concepcion Diaz got married on
May 19,1951. On Aug.22,1969, Lerma filed a complaint
for adultery against Diaz and Teodoro Ramirez. On
Nov18, 1969, Concepcion filed a complaint for legal
separation(grounds:concubinage and attempt against her
life) and/or separation of properties, custody of their
children and support, with an urgent petition for support
pendente lite for her and their youngest son. Petitioner
opposed on the application for support pendente lite,
setting up as a defense, the adultery charge he had filed
against Concepcion. Judge Luciano however granted the
application for support pendent lite. Petitioner then filed
with CA a petition to annul the decision of the Judge and
to prevent him from enforcing the said orders. CA then
granted petitioner an opportunity to present evidence in
support of his defense against the application for support
pendente lite.
Issue: whether adultery is a good defense against
Concepcions claim for support pendente lite?
Held: Art. 100 provides that legal separation may be
claimed only by the innocent spouse. If the legal
separation cannot be claimed by the guilty spouse, the
fact that an action for that purpose is filed should not be
permitted to be used as a means to obtain support
pendente lite, which without such action, would be
denied on the strength of the decisions recognizing
adultery as a good defense. Art.292(now Art.198 of FC)
is not in itself the source of the legal right to receive
support. It merely states that the support, not only of the
spouses but also of the children, shall be taken from the
conjugal property during the pendency of the legal
separation proceeding. It does not preclude the loss of
such right in certain cases. Thus, adultery may be a
defense in an action for support.
6. Defenses in actions for legal separation FC Art. 56
(a) Consent
FC 56(2); NCC 100
Matubis v. Praxedes
Socorro and Zoilo were married on Jan.10,1943 but because
of failure to agree on how to live as husband and wife,
they agreed to live separately on May 30,1944. They entered
into an agreement on which they state that neither of
47

them can prosecute the other for adultery/concubinage or


any other crime or suit arising from separation. On
Jan.1955, Zoilo started to cohabit with Asuncion and
they deported themselves as husband and wife. Socorro
filed a complaint(Apr.24,1956) for legal separation against
Zoilo on the ground of abandonment and concubinage.
The trial court dismissed the complaint for 2 reasons,
among others was, Art.100 of CC 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/concubinage. It is clear that Socorro
consented to the commission of concubinage as
evidenced by their agreement.
Held: condonation and consent on the part of Socorro
are necessarily the import of the agreement. The
condonation and consent are expressed. Legal separation
may be claimed only by the innocent spouse, provided
there has been no condonation of or consent to the
adultery or concubinage.
People v. Sansano
Ursula and Mariano got married on Apr.29,1919 and
shortly after the birth of their child, Mariano left them.
Poor and illiterate, without relatives upon whom she
could call, she struggled for an existence for herself and
her son until she met Marcelo who took her and the child
to live with him. When Mariano returned, he filed an
adultery case against Ursula and Marcelo. After serving
the sentence, Ursula left her paramour and beg Mariano
to take her back. However, Mariano refused to pardon
her and said that she could go where she wished and do
as she pleased. Abandoned for the 2 nd time, Ursula went
back to Mariano. Knowing this, Mariano left for Hawaii
and remained there for 7yrs completely abandoning his
wife and child. On his return, he filed a 2 nd charge of
adultery.
Held: By his long absence, despite his knowledge of the
adultery of his wife, a husband is deemed to have
consented to the adulterous relations of his wife and is
barred from instituting a case for adultery, since the sole
purpose of filing the charge is to use it as a ground for
legal separation.
People v. Schneckenberger
On March 16,1926, Rodolfo Schneckenberger married
Elena and after 7yrs., they agreed to live separately for
reason of incompatibility of character and on May
25,1935, they executed a document where they intended
to forego to illicit acts of the other. On June 15,1935,
Rodolfo, without leaving the Philippines, secured a
decree of divorce from the district court in Mexico and
contracted another marriage with Julia on May 11,1936.
Because of the nullity of the divorce decree, a case for
bigamy and concubinage was filed against Rodolfo.

Held: the court believed that Rodolfo should be


acquitted of the crime of concubinage. The document
executed between Rodolfo and Elena constitutes a valid
consent to the act of concubinage. That consent, express
or implied, bars the offended party from instituting a
criminal prosecution in case of concubinage.
(b) Condonation
FC 56(1)
Ginez v. Bugayong
Benjamin Bugayong married Leonila Ginez on
Aug.27,1949 and thereafter lived with Leonilas sister-inlaw. On Jul.1951, Leonila left the said dwelling and
Benjamin was informed that she had gone to reside with
her mother. As early as Jul.1951, Benjamin began
receiving information of his wife alleged acts of
infidelity. In Aug. 1952, Benjamin went to Pangasinan
and sought for his wife. Leonila came along with him
and both proceeded to the house of Benjamins cousin
where they stayed and lived for 2 night and 1day as
husband and wife. On the 2 nd day, Benjamin tried to
verify from his wife the truth of the information he
received that she had committed adultery. However,
instead of answering the query, Leonila left which
Benjamin took as a confirmation of the acts of infidelity.
After that and despite such belief, Benjamin still exerted
efforts to locate his wife. On Nov.18,1952, he filed a
complaint for legal separation. The counsel for Leonila
moved to dismiss the petition on the ground that the act
charged have been condoned by Benjamin. The court
thereafter dismissed the action.
Held: testimony of Benjamin clearly shows that there
was a condonation on his part for the supposed acts of
rank infidelity amounting to adultery committed by his
wife. The act of persuading her to come along with him
and the fact that she went with him and consented to be
sleep together as husband and wife constitutes
reconciliation between them and that there was indeed
condonation on the part of the husband. The
reconcillation occurred almost 10monts after Benjamin
came to know of the acts of infidelity. [Condonation is the
forgiveness of a marital offense constituting a ground for legal
separation. A single voluntary act of marital intercourse
between the parties ordinarily is sufficient to constitute
condonation.]

(c) Recrimination
FC 56(4)
Brown v. Yambao
On Jul.14,1955, William Brown filed for legal separation
from Juanita Yambao alleging that while he was interned
by the Japanese invaders, his wife engaged in adulterous
relations with Carlos and that he learned only of the
misconduct on 1945. They then lived separately and
executed a document liquidating their conjugal
48

partnership. The court, after finding that Brown had


lived martially with another woman, denied the petition
for legal separation on the ground that while the wifes
adultery was established, Brown had incurred a
misconduct of similar nature that barred his right of
action under Art.100 of CC [Legal separation may be claimed
only by the innocent spouse, provided there has been no condonation
or of consent to the adultery or concubinage. Where both spouses are
offenders, a legal separation cannot be claimed by either of them.]

Held: Williams action was already barred because of the


commission of similar offense i.e., a marital relation
with a woman other than his wife.
Ong vs Ong
William Ong and Lucita were married on Jul.13,1975. On
Mar.21,1996, Lucita filed a complaint for legal separation on
the ground of physical violence, threats, intimidation and
grossly abusive conduct on the part of William. RTC
granted the petition and CA likewise affirmed. William
on the other hand averred that it Lucita abandoned the
conjugal dwelling and therefore, the petition for legal
separation should be denied by virtue of Art.56(4) of FC.
Held: repeated acts of physical violence are grounds for
legal separation.Court also ruled that the abandonment
referred to by FC is abandonment without justifiable
cause for more than 1 year. As it was established, Lucita
left William due to his abusive conduct, and such does
not constitute abandonment contemplated under FC.
(d) Collusion/Mutual Consent
FC 60
FC 56(3), (5), compare with NCC 101 and 221(3)
Brown v. Yambao
On Jul.14,1955, William Brown filed for legal separation
from Juanita Yambao alleging that while he was interned
by the Japanese invaders, his wife engaged in adulterous
relations with Carlos and that he learned only of the
misconduct on 1945. They then lived separately and
executed a document liquidating their conjugal
partnership. The court declared the wife in default for
failure to answer in due time and directed the City Fiscal
or his representatives to investigate whether or not a
collusion exists between the parties. As ordered,
Assistant City Fiscal Jose appeared and found that there
has been consent and connivance between the parties
because Williams action had prescribed under Art.102
of CC[An action for legal separation cannot be filed except within 1
year from and after the date on which the plaintiff became cognizant
of the cause and within 5yrs. from and after the date when such cause
occurred]. The evidence showed that William learned of

his wife infidelity in 1945 but only filed an action in


1955.
Held: Williams action was already barred because he
did not petition for legal separation proceedings until
10yrs after he learned of his wifes adultery. The Fiscal

should be allowed to focus upon any relevant matter that


may indicate whether the proceedings for separation or
annulment are fully justified or not. In this case, the
evidence of misconduct of William were considered
circumstantial evidence of collusion between him and
Juanita
Ocampo v. Florenciano
Republic v CA
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)
P.D. 603 (CYWC) Art. 17 par. 3
Matute v. Macadaeg
Armando filed an action for legal separation against
Rosario on the ground of adultery. He was then granted
the decree of legal separation and awarding him the
custody of their 4 children. On March 1955, the children
joined their father in Cebu. With his permission, Rosario
brought the children to Manila on Apr.1955 to attend the
funeral of her father. However, Rosario did not return the
children, instead, she filed a civil case praying that she
be awarded the custody of their children. She alleged
that her 3 children do not want to go back to their father
because he is living with another woman.the said
petition was denied. In this petition, she alleged among
others that Armando is unfit to have the children under
his care by reason of moral depravity, habitual
drunkenness, incapacity or poverty.
Held: moral depravity, habitual drunkenness, incapacity
or poverty render a mother unfit to take charge of her
children or make it unwise to place them under her care
pursuant to rule 100,Sec.6. In this case, poverty, among
other causes, rendered Rosario unfit to take charge of her
children or made it unwise to place them under her care.
(c) On property relations
FC 63(2), FC 64, FC Art. 102 (4), 129 (7)
Quiao v Quiao
(d) On support, FC 198
(e) On the use of surname, NCC 372
Laperal v. Republic
Elisa and Enrique Santamaria were granted a decree of
legal separation on Jan.18,1958. During their marriage,
Elisa naturally used the surname Santamaria. Because of
her legal separation from Enrique, she prayed to be
allowed to change her name or be permitted to resume
using her maiden name Laperal. The petition was denied
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on the ground that it violates the provision of Art.372 of


CC.[when legal separation has been granted, the wife shall continue
using her name and surname employed before the legal separation]

Held: the language of the statute is mandatory that the


wife, even after the legal separation has been decreed,
shall continue using her name and surname employed
before the legal separation. This is so because her
married status is unaffected by the separation, there
being no severance of the vinculum. It seems to be the
policy of the law that the wife should continue to use the
name indicative of her unchanged status for the benefit
of all concerned.
(f) On hereditary rights, FC 63(4)
(g) Solo Parents Act RA 8972
8. Reconciliation, FC 65-67
9. Effect of death of one of the parties
Lapuz vs. Eufemio
Macadangdang vs. CA
Filomena and Antonio were married in 1946. They
separated in 1965 and when Filomena retured to Davao
in 1971, she learned of the illicit affairs of Antonio. In
April 1971, she instituted a complaint for legal
separation. On Jan.4,1973, the trial court ordered the
legal separation and the dissolution and liquidation of
the conjugal community of property. On Feb.6,1980,
counsel for Antonio, through a notice of death and
motion to dismissed informed the court that Antonio
died on Nov.30,1979 and as a consequence, the civil
case have become moot and academic.
Issue: Whether the death of Antonio after a final decree
of legal separation, has effect on the legal separation?
Held: The death of a spouse after a final decree of legal
separation has no effect on the legal separation. When
the decree itself is issued, the finality of the separation is
complete after the lapse of the period to appeal the
decision to a higher court even if the effects, such as the
liquidation of the property, have not yet been
commenced nor terminated.
Such dissolution and liquidation are necessary
consequences of the final decree. Article 106 of the Civil
Code, now Article 63 of the Family Code provides the
effects of the decree of legal separation. These legal
effects ipso facto or automatically follows, as an
inevitable incident of the judgment decreeing legal
separation, for the purpose of determining the share of
each spouse in the conjugal assets.

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