The hard facts of legal separation


Social media has been abuzz the past months with warring celebrity couples giving way to “socmed lawyers” the same way we saw “socmed doctors” firing up debates during the height of the pandemic.
Information is power and misinformation not only breeds contempt, but can cause more harm than good. To put an end to speculations on who is right or wrong between partners, we asked family law practitioner and a senior partner of Calleja Law Firm, Atty. Maria Concepcion Aquino, to answer the most debated topics related to separation.

RM: Does the wife/husband retain legal rights in case of separation?
MCA: In cases of legal separation, the absolute community of property (ACP) or the conjugal partnership of gain (CPG) will be dissolved and liquidated by the court. But the guilty spouse (the person who gave ground for the legal separation) will have no right to any share of the net profits earned by the absolute community or conjugal partnership.
Aside from this, the custody of the minor children will be awarded to the innocent spouse. But for those children below seven years, they should not be separated from the mother unless the court finds compelling reasons to order otherwise.
Generally, the obligation of mutual support between the spouses ceases after the decree of legal separation. But the court may order the guilty spouse to give support to the innocent spouse.

RM: What qualifies a couple to file for legal separation?
MCA: Article 55 of the Family Code provides the grounds for legal separation, to wit:

  1. Repeated physical violence or grossly abuse conduct directed against the petitioner, a common child, or a child of the petitioner;
  2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
  3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
  4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
  5. Drug addiction or habitual alcoholism of the respondent;
  6. Lesbianism or homosexuality of the respondent;
  7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
  8. Sexual infidelity or perversion;
  9. Attempt by the respondent against the life of the petitioner; or
  10. Abandonment of petitioner by respondent without justifiable cause for more than one year.
    For purposes of this article, the term “child” shall include a child by nature or by adoption. It must be noted that the grounds mentioned in Art. 55 are exclusive; no other ground may be invoked by any party other than those stated by law. However, the petition for legal separation shall be denied on any of the following grounds:
  11. Where the aggrieved party has condoned the offense or act complained of;
  12. Where the aggrieved party has consented to the commission of the offense or act complained of;
  13. Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation;
  14. Where both parties have been given ground for legal separation;
  15. Where there is collusion between the parties to obtain the decree of legal separation; or
  16. Where the action is barred by prescription.
    RM: What
    not to do when you are separated?
    MCA: Since legal separation does not dissolve the marriage, the spouses may be subject to bigamy, concubinage or adultery if they commit such acts. Until they have a foreign divorce recognized, nullity of marriage, or an annulment, they may not remarry though legally separated. After the decree of legal separation, the offending spouse must not attempt to receive any share of the net profits earned by the absolute community or conjugal partnership. Otherwise, the guilty spouse may be found guilty for indirect contempt.
    From the finality of the decree of legal separation, the guilty spouse must not in bad faith alienate or encumber any donations or designations of any insurance policy.

RM: What does it mean to be legally separated?
MCA: Under the Family Code, legal separation is known as relative divorce. The Supreme Court in Laperal v. Republic explained that a decree of legal separation does not affect the marital status, there being no severance of the vinculum. In other words, it does not dissolve the marriage. The decree involves nothing more than a bed-and-board separation of the spouses. It must be emphasized that the marriage bond is not severed.

RM: What is the difference between separation and divorce?
MCA: The difference between legal separation and divorce is that in the latter there is dissolution of the bond of matrimony. Meanwhile, legal separation does not dissolve the marriage. The court in Garcia v. Recio explained that divorce is the legal dissolution of a lawful union for a cause arising after marriage. As mentioned earlier, legal separation does not affect the marital status, as there is no severance of the marital tie. The Supreme Court in Tenchavez v. Escano said that the Family Code does not permit absolute divorce, except under the second paragraph of Article 26 of the same Code.