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Legal Separation of Marriage Explained

Legal Separation of Marriage Explained

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Legal Separation of Marriage Explained

In recent years there has been an increase in the number of couples desiring to terminate their marriage for one reason or another. One of these is the physical abuse they experience from their partner or sometimes, bizarre traits, which they discovered in their partner such as excessive alcoholism or even tendencies to fall with someone of the same sex.

In this article, I will discuss with you the concept known as Legal Separation, a term which some of you may have already encountered but the meaning of which is still unclear in your minds.

What is legal separation?

Legal separation is a decree from the court permitting the husband and the wife to live separately from each other.

How is it different from declaration of nullity and annulment of marriage?

There are several differences among these legal concepts but the main difference is that unlike in declaration of nullity and annulment of marriage, the marriage is not severed in cases of legal separation. Thus, the husband and the wife are still married despite the decree of legal separation.

What are the grounds for legal separation?

A petition for legal separation may be filed on any of the following grounds:

  1. Repeated physical violence or grossly abusive conduct against the petitioner, common child, or a child of the petitioner. Thus if for example the husband keeps on hitting the wife with a “dos por dos”, then the wife can file a legal separation. Take note that the physical violence must be repeated or that the abusive conduct must be gross, otherwise there is no ground for legal separation.
  2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliations. For example if the wife threatens the husband that if the latter does not support the Liberal Party, the wife will leave the husband. In this case, the husband can file a case for legal separation against the wife due to the moral pressure.
  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. For example, if the wife has an 18-year-old daughter from his former marriage, and the present husband compelled this daughter to pose for FHM, there will be no case of legal separation because mere posing in FHM is not prostitution. But if the stepfather required this daughter to work as a prostitute in Quezon Avenue, then there will be a basis for legal separation.
  4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned. For example, if the husband was convicted of plunder, a case that has a penalty of life imprisonment, the wife can file a case for legal separation. This will prosper even if the President pardons the husband.
  5. Drug addiction or habitual alcoholism of the respondent. Thus if the husband went to a bar, tasted a beer for the first time and after realizing how good it was, he downed one case before going home the next day after, there will be no case of legal separation because the alcoholism of the husband is not habitual. It would be different in case the husband made it a habit to do this drinking spree every night.
  6. Lesbianism or homosexuality of the respondent. For example, if the husband keeps going to a gay bar and engages in homosexual acts with the hunky dancers, then the wife has a case for legal separation.
  7. Contracting by the respondent of a subsequent bigamous marriage, whether here or abroad. So, if the husband went to Korea to look for a fair skinned lady and later on married the latter despite the existence of his marriage with his Filipina wife, the latter can file a case for legal separation.
  8. Sexual infidelity or perversion. For example if the wife had sex with a man not his husband, the husband can file a case for legal separation against the wife.
  9. Attempt by the respondent against the life of the petitioner. Thus if the wife tried to kill the mother of the husband, there will be no case of legal separation because the attempt was not against he petitioner. But if the husband tried to kill the husband, then there will be a case for legal separation.

10. Abandonment of petitioner by respondent without justifiable case for more than one year. So, when the husband was stranded in an island due to a plane crash and was rescued after a year, there will be no case of legal separation because there was a justifiable cause. But if the husband just went around the world for no valid reason and did not return after a year, the wife can file a case for legal separation against the husband.

Is there a period within which I am allowed to file the case for legal separation?

Yes. The affected party has five (5) years from the date of the commission of the offense within which to file the case for legal separation.

Will the trial proceed immediately after the filing of the case for legal separation?

No. An action for legal separation shall in no case be tried before six months shall have passed since the filling of the petition. This six months “cooling off” period is designed to give the husband and the wife time to think about their status with the hope that they reconcile in the end.

When will I be allowed to live separately from my husband/wife?

After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other.

What are the effects of legal separation?

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 bond shall not be severed. This means that even if the husband and the wife are entitled to live separately from each other, neither one of them is allowed to marry another person, because if he/she does so, he/she will commit bigamy.
  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. Take note that the right removed is limited only to the net profits and not to the whole property regime.
  3. The custody of the minor children shall be awarded to the innocent spouse, subject to the provision of Article 213, which provides that parental authority shall be exercised by the parent designated by the court and that maternal preference shall be exercised in case the child is less than seven (7) years of age.
  4. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Thus the husband who constantly harms his wife will not receive inheritance from his wife who died without a will. But in case the wife made a will and bequeathed a property to her husband, the law also provides that provisions in favor of the offending spouse in the will of the innocent spouse shall be revoked by operation of law.

216 Comments

  • rey, says:

    atty.good day po.nais ko lang po sanang magtanong sa pagpapawalang bisa ng kasal,ako po ay 16years old ng kasalukoyang ksalin taong 1996.at ginawa po nilang 17 ang idad ko para lang makasal.nagsama po kami start po 1996 to 2008 may 4 na anak po kami.sa ngayon po pariho na po kaming may kinakasama ako po ay may 2 anak na dito sa asawa ko ngayon kasal po ako sa pangalawa sa islam.pariho po kaming balik islam.ang mga anak ko po sa una kong asawa yong 3 po nasa akin sa pangangalaga po ng asawa ko ngayon dahil po dito ako sa uae, at yong 1 nasa x wife ko po ang aking panganay.nais ko po sanang mapawalang bisa ang kasal ko sa una kong asawa para po di na sya makapanggulo sa aming mag asawa.ano po ba ang dapat kong gawin at magkano po kya ang magagastos.salamat po

  • bernadeth says:

    gud pm po.. siya sa una at may 2 anak, matagal na po silang hiwalay mga 7 years na po yong asawa niya dati may kinakasama na din.. gusto q po sana kasi bago kme mag kaanak e kasal muna, plz give me suggestion Atty.
    tnx

    • Atty. James Biron says:

      Bernadeth, before you get married to him, he must first have his first marriage declared null or annulled by the Court.

  • rochelldino says:

    good pm po attorny,tanung ko lang po pwd ba kong pakasal sa isang arabo sa jeddah kht kasal pa kami ng asawa ko sa pinas?
    ,sa jeddah po naming balak pakasal ng arabo.Plz po reply me asap pinatatanung nya he.Salamat po.

  • aireem says:

    PAno pong paraan Gagawin naman PAra makasal. sya po ay kasal sa una. Pero may pamilya na sila pareho ngayon. 12 yrs na silang hiwalay

    • Atty. James Biron says:

      Aireem, they first need to seek judicial process. If there is a basis for nullity or annulment then they can file for that, whichever is applicable.

  • Diane MARCELO says:

    Hi po Atty., sana po mabigyan nyo aq ng magandang advice regarding po sa situation namin ng asawa ko. Si hubby ko po kasi ay nakabuntis ng ibang babae, and then maliwanag naman na nag agreed si babae at si hubby na sustento nalang pag nanganak siyaa, pero at this point po ako yong ginugulo nung ina nung babae na dapat daw ibahay ni hubby ko yung anak nya kundi idedemanda nya daw kami. Atty. ask ko lang po anu po bang pwede na isampang kasu laban sa asawa ko? eh ni hndi pa nga po nila napapatunayan na ung mister ko ang sinasabi nilang ama nung ipinagbubuntis nya.. please help nyo naman po aq.

  • Peachy says:

    I just want to ask how can I ask for financial support from my husband who is living in the US for 10 years.

    • Atty. James Biron says:

      Peachy, have you tried using the non-judicial means like sending him a letter or giving him a call?

  • Allison Bea says:

    Atty, my husband and I have been together for 9yrs now. And during those times, nararamdaman ko na po ang cold treatment nia sakin. I’ve done everything to win him back not knowing what’s d cause of his coldness. But despite all the efforts, cold pa rin sia and napagod na po ako. Can i file for a legal separation? On what grounds, Sir? Please help. Thanks :-)

    • Atty. James Biron says:

      Bea, there is no basis for the filing of legal separation here.

      • Allison Bea says:

        Atty, but it’s clear na wla na po ciang love for me and vice versa…i dont wanna live with him anymore. D ko na po matagalan situation namin. As if we dont exist po sa bahay. Ang hirap po ng ganon. I wanted to legalize everything that’s why i wanna file for legal separation. Please help po. Thanks.

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