Basics on Legal Separation in the Philippines

What is legal separation?

Legal separation is a legal remedy available to married couples in the Philippines. It entails the judicial process of separating the assets of the parties and addressing issues related to parental responsibilities and support, if applicable. It does not, however, dissolve the marriage.
Upon a decree of legal separation, the absolute community partnership between husband and wife shall be liquidated, the partnership dissolved, and their properties divided. This property system recognizes that each spouse shall retain ownership of his or her own property. It also recognizes a community property system, where the spouses have separate estates but share ownership of certain properties. For instance, income from the separate property of either spouse would belong to him or her absolutely. However, properties acquired during their marriage may be owned by either spouse, causing the estate to become community property. In times of dissolution, the spouses would divide their community and common property according to the law .
Aside from liquidating and dividing the property of the spouses, the conjugal partnership is dissolved. The right to support is generally extinguished between the couple. However, there might be an exception for minor children or spouses with disabilities. Custody of a child, however, is not awarded to the parent unless so requested.
In his book Family Code of the Philippines, 2014 Edition, Fr. Joaquin G. Bernas SJ explains that, while the legal separation of spouses entails a division of property, custody and support, it does not dissolve the marriage. Religious and civil status remain the same. Only spouses who are legally separated can contract a second marriage.
The spousal relationship remains, granting them prescriptive rights in favor of a successor. Without a legal decree, the spouses will continue the performance of certain duties and assume rights and obligations to each other. It is in only the events of death, dissolution of the marriage by annulment or legitimate separation, and entry of judgment on the separations of property that the husband and wife are no longer obligatory to each other.

Reasons for legal separation

Under the Family Code of the Philippines, there are several grounds upon which a legal separation may be granted by the courts. Those grounds exist in Article 55 of the law and they include the following:

"Repeated physical violence or serious abuse by one spouse against the other or a common child. A single act of physical violence or serious abuse is sufficient;"
"Express or implied consent to the leading of a promiscuous life on the part of the other spouse;"
"Attempt by one spouse against the life of the other or the common child;"
"Abandonment of one spouse by the other for more than one year;"
"Conviction of one spouse of a crime involving moral turpitude. The crime must be consummated by final judgment and the spouse must be sentenced to an imprisonment term of more than six years;"
"Sexual infidelity of one spouse. A single act of sexual infidelity is sufficient to constitute a ground for legal separation;"
"Drug addiction or habitual alcoholism of one spouse for a period of at least three years;" and
"Incurable insanity of one spouse ."

As can be seen from these grounds, those that qualify for legal separation in the Philippines do not include lack of affection, incompatibility of the spouses, and financial difficulties.

Legal separation process

Legal separation in the Philippines is a judicial process that involves carefully delineated procedural steps to ensure that the interests of both spouses are protected. The petitioner is required to file a verified petition for legal separation in the proper Regional Trial Court (RTC) within 5 years following the commission of the act or omission sought to be impugned. The decision of the RTC wherein the petition was filed has a 90-day period to attain finality. The petitioner is given 30 days from the date of the entry of judgment of finality to file an ex-parte motion to declare the judgment as executory. Upon filing, the record shall be sent to the Court of Appeals which shall acquire jurisdiction over the case. It is important to note that failure to file any of these motions will have the effect of reviving the marriage.
Legal separation does not ipso facto terminate the bond of marriage, but rather terminates all marital cohabitation between the spouses. All legal separations shall have an entry of judgment in the civil registry to this effect. In addition, the decree of legal separation shall be annotated on the certificates of legal identities and all other pertinent documents pursuant to the rules on civil registration.
Every legal separation provides the spouses the right to file for annulment of marriage pursuant to applicable rules and regulations which must be filed not later than five years after the entry of the decree. Finally, legal separations may also be pursued as a ground by the innocent spouse on annulment or declaration of nullity cases pursuant to the Family Code of the Philippines.
Filing for legal separation requires adherence to rules. Information such as the children and parental authority, properties to be liquidated, fair, reasonable and adequate provision for support, settlement of obligations, visitation and collaboration rights, disposition of the property and how the family home shall be disposed, custody and disposition of property, and settlement of obligations must be clearly stated in the petition.

The effects of legal separation

The effects of a legal separation differ from those of annulment or divorce. The property acquired during the marriage is considered conjugal property, and the relevant civil code provision states that in the event of a legal separation, the property will be divided. If there is no waiver of the right to sell or encumber the property, this will be done immediately. If there is a waiver, the proceeds shall still be divided, but no longer shall any property be sold or otherwise encumbered without the express consent of the other party.
The custody of the children and their support shall still be governed by the provisions for support under Civil Code provisions 333, 337 and 339, but no separation allowance shall be given. Absent a waiver, however, the compensation of the parental authority shall fall solely to the parents of each spouse.
On the question of spousal support, a legal separation is treated the same as a judicial separation in terms of spousal support. The husband shall still benefit from the fruits of his earnings, but the wife shall not. The question of spousal support is not affected by the provisions of Title VIII of the Civil Code, as mentioned in Article 221, thus a suit for spousal support is still within the jurisdiction of the Court of First Instance.

Legal separation and reconciliation

In some cases, separation may be avoided and reconciliation between the parties could still be made: (1) during the pendency of the legal separation proceedings; or (2) after the issuance of a decision ordering legal separation. Reconciliation is encouraged by the law to preserve the union and promote the family and societal relationship and to prevent people from easily going to court in vindication of their rights. During the pendency of the proceedings, applications for reconciliation and an order of suspension of the proceedings may be filed. If reconciled, a certification issued by both parties acknowledging that their differences have been settled amicably and not involving any economic consideration, duly signed under oath before a person authorized to take deposition may be submitted to the court for dismissal of the case. A certificate of reconciliation issued by a marriage counselor may also be submitted. An application for suspension of the proceedings under Article 227 of the Code of Muslim Personal Laws may also be filed. The reconciliation of the parties during the pendency of the proceedings shall suspend the proceedings for a period of six months. However , if the parties during the pendency of the proceedings may not reach amicable settlement, the court shall resume the proceedings upon expiration of the six-month suspension period. Notwithstanding the promulgation of the decision granting the legal separation, reconciliation by the parties may still be affected, without prejudice to any property rights, custody and support of their children. The court may upon motion or even motu proprio dismiss the case. A reconciliation or resumption of cohabitation may also be affected by either party from that day until the termination of the period of appeal which is thirty days from notice of the decision. In either case, a petition to the court must be filed within thirty days from the reconciliation or resumption of cohabitation.

Legal advice and representation

Legal separation is an important legal process that separates a couple’s property and finances while allowing them to remain married. While the process itself is fairly straightforward, it is important for the parties to retain legal advice and representation for the best results.
Retention of legal representation
The ideal situation is that both parties have separate representation through the duration of the case. This not only helps to prevent any conflict of interest but also ensures that each party remains in the best position to fully protect their rights and interests. Even when both spouses are in the rainbow and wishing to cooperate with each other, having separate representation is valuable because an attorney will be able to provide objective insight and knowledge of the law to their client. If this is not possible, or one spouse refuses to hire a lawyer, the other may seek to hire one with less conflict of interest. That’s because in the event judgment is passed down, there’s a risk that the spouse who was not represented by an attorney may have a difficult time disputing the decision.
In some circumstances, however, it may actually not be possible to hire separate representation. Asset constraints, the time involved in the separation process and other issues could make cooperation promising but not feasible if some terms are clearly unfair. In these circumstances, it is an unfortunate reality that the best option for the unrepresented spouse is to accept an unfair deal and hope to negotiate a better divorce settlement later on. In the end, whether or not to agree to a settlement without representation is a big decision that must be made with extreme care and, ideally, with an attorney present.
Cost of legal representation
If you’re concerned about the cost of retaining a family lawyer, rest assured, many are willing to work with you on payment plans or lower their fees if necessary. Before retaining a lawyer, be sure to have an understanding of how much their legal fees will be and what options are available if those fees cannot be met at the moment.
Involving your spouse
It’s important to have this conversation with your spouse before proceeding with retention. Most family lawyers will ask a number of questions before taking on your case, but it’s important to gauge your spouse’s feelings and preferences as best you can to ensure a smooth process.
It’s also important to keep in mind that legal separation should ultimately be chosen by both parties.

Recent legal reforms

Last August 2019, a partial amendment of the Civil Code of the Philippines on legal separation has been approved by the Senate and the House of Representatives. Senator Richard Gordon, the Chairman of the Senate Committee on Justice and Human Rights, sponsored the bill and said that the current legal separation law needs to be updated. The present law allows one spouse to ask for legal separation against the other and seeks to have the responsibilities of the spouses set out. The bill will add, among other things, an article stating that legal separation is available whenever an abusive spouse has intentionally inflicted sexual intercourse with another person – thus establishing adultery as a basis for legal separation without having to file criminal charges against the offending spouse. The proposed amendment will also include emotional abuse and neglect of duty as a basis for legal separation .
In the House of Representatives, the approval was sponsored by House Bill 8728 – an act amending Articles 55 and 102 of the Family Code of the Philippines to allow legal separation for other grounds aside from adultery, physical violence or moral pressure, inordinate desire on the part of one spouse to be free from the marriage bond and drug addiction or excessive gambling where a party can ask the court to terminate his or her marital cohabitation and divide the properties that were acquired during the marriage.
The amendments of Articles 55 and 102 have not gone to up to the bicameral committee where lawmakers from both Houses meet to reconcile the differences between the bills, yet. However, with the approval of the amendments by two Houses, the Committee and the President’s approval would most likely just be formality.