Published 11 November 2019, The Daily Tribune
The sanctity of marriage is largely anchored on the permanence and stability it provides to relationships and families; hence, most wedding vows state that only death should separate spouses. But under Philippine law, there are other ways by which marriage may be dissolved. With respect to legal separation, marital rights and duties are suspended but the ties of marriage are not severed, unlike in annulment of marriage and declaration of nullity of marriage, which will be subject of our next discussions.
As the term implies, legal separation is the acknowledgement by the court of the separation between spouses by relieving each other of their marital rights and obligations. It covers many grounds indicating serious marital problems and issues, which include:
•Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
•Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
•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;
•Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
•Drug addiction or habitual alcoholism of the respondent;
•Lesbianism or homosexuality of the respondent;
•Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
•Sexual infidelity or perversion;
•Attempt by the respondent against the life of the petitioner; or
•Abandonment of petitioner by respondent without justifiable cause for more than one year (Article 55, Family Code).
A unique feature of petitions for legal separations is the “cooling off period,” where the case can only proceed to trial six months after the petition is filed. No legal separation will be granted unless the court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. Further, the petition must be filed within five years from the time the ground for legal separation became known, otherwise, the petition will be dismissed. Other grounds for dismissal are condonation or forgiveness of the marital offense, collusion, and mutual guilt, or where both spouses have given ground for legal separation (Article 56, Family Code).
If the petition is granted, the same entitles the spouses to live separately. Their property regime, whether absolute community or the conjugal partnership, shall be dissolved and liquidated, where the offending spouse will have no right to any share of the net profits. The offending spouse will also be disqualified from inheriting from the innocent spouse (Article 63, Family Code).
As the legal separation of spouses will affect their children, custody is included in the judgment. The custody of the minor children shall be awarded to the innocent spouse, but the court will also take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit (Article 63 in relation to Article 213, Family Code).
Notwithstanding these effects of legal separation, the law does not foreclose the possibility of reconciliation of the spouses. Thus, Articles 65 and 66 of the Family Code provide that in case the spouses reconcile and reconsider their legal separation, the petition shall be dismissed upon their joint manifestation. Any decree of legal separation already issued may be set aside, but the separation of property and forfeiture against the guilty spouse remain unless the spouses agree to revive their former property regime.
It cannot be overemphasized that legally separated spouses cannot contract another marriage because their marriage to one other still subsists. Should they go ahead and marry another, they run the risk of being prosecuted for bigamy, no matter how long ago the petition for legal separation had been granted or whether the same had attained finality. At the end of the day, legal separation is separation from bed and board — it does not dissolve or terminate the ties of marriage. The fact that the law and the spouses did not intend to dissolve their marriage when this route is taken can only mean not foreclosing any hope for reconciliation as opposed to annulment, which will be taken up in the next column.
For comments and questions, please send an email to cabdo@divinalaw.com.
