Philippine Law on Grounds for Legal Separation PDF

I. Grounds for Legal Separation  If the physical violence is directed to them the same is also punishable under R.A. No. 9262 Art. 55. A petition for legal separation may be filed on any...

I. Grounds for Legal Separation  If the physical violence is directed to them the same is also punishable under R.A. No. 9262 Art. 55. A petition for legal separation may be filed on any of the following grounds: Attempt against the life of the petitioner (par. 9) (1) Repeated physical violence or grossly abusive  Physical violence committed by the respondent is conduct directed against the petitioner, a in the form of an attempt against the life of the common child, or a child of the petitioner; petitioner (2) Physical violence or moral pressure to compel the  Physical violence need not be repeated for it to petitioner to change religious or political be a ground for legal separation. affiliation; (3) Attempt of respondent to corrupt or induce the Physical violence or moral pressure to compel the petitioner, a common child, or a child of the petitioner to change religious or political affiliation (par. petitioner, to engage in prostitution, or 2) connivance in such corruption or inducement;  If the physical violence is employed by the (4) Final judgment sentencing the respondent to respondent in order to compel the petitioner to imprisonment of more than six years, even if change his or her religious or political affiliation, pardoned; the same is likewise a ground even if it is (5) Drug addiction or habitual alcoholism of the employed only once. respondent;  Physical violence or moral pressure must be (6) Lesbianism or homosexuality of the respondent; directed against the petitioner. (7) Contracting by the respondent of a subsequent  Thus, if the physical violence or moral pressure is bigamous marriage, whether in the Philippines or directed against a common child or a child of the abroad; petitioner to compel said child to change (8) Sexual infidelity or perversion; religious or political affiliation, there is no ground (9) Attempt by the respondent against the life of the for legal separation if the physical violence is not petitioner; or repeatedly resorted to. (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. Grossly Abusive Conduct (par. 1)  Need not be physical For purposes of this Article, the term “child” shall include  Psychological and sexual violence under R.A. a child by nature or by adoption. 9262 and repeated verbal abuse may likewise qualify as grounds Concept B. "Sexual violence" refers to an act which is sexual in nature, committed  A legal remedy available to parties in a valid but against a woman or her child. It includes, but is not limited to: failed marriage for the purpose of obtaining a a) rape, sexual harassment, acts of lasciviousness, treating a decree from court entitling him or her to certain woman or her child as a sex object, making demeaning and reliefs such as the: sexually suggestive remarks, physically attacking the sexual o Right to live separately from each other parts of the victim's body, forcing her/him to watch obscene (without affecting the marital bond that publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing exists between them), the wife and mistress/lover to live in the conjugal home or o Dissolution and liquidation of their sleep together in the same room with the abuser; absolute community or conjugal b) acts causing or attempting to cause the victim to engage in partnership property regime, and the any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion; o Custody of their minor children c) Prostituting the woman or child.  Does not dissolve the marriage tie, much less authorize the parties to remarry C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not Legal Separation v. Annulment v. Absolute Divorce limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or LS A AD psychological abuse of a member of the family to which the victim Marriage bond is belongs, or to witness pornography in any form or to witness abusive Severed Severed injury to pets or to unlawful or unwanted deprivation of the right to not severed custody and/or visitation of common children. Ground must At the time of exist after After celebration Promotion of Prostitution (par. 3) the marriage marriage  May likewise be a ground for legal separation under par. 1, referring to “grossly abusive Philippine laws do not provide for absolute divorce conduct.” although it recognizes as valid the divorce obtained by an  Under R.A. No. 9262, this ground is also punished alien spouse who is married to a citizen of the Philippines, as a crime if the same is directed against the wife even in so far as the latter is concerned. What Philippine or a child of the wife. laws provide are relative divorce in the form of legal separation and annulment. Final Judgment of More than Six Years Imprisonment (par. 4) Grounds for Legal Separation  For a final judgment of conviction to be considered as a ground for legal separation, the Infliction of physical violence (par. 1) following requisites are required:  A ground for legal separation if the same is o The sentence imposed is imprisonment repeatedly resorted to by the respondent against of more than six (6) years; and the petitioner, a common child, or a child of the o The conviction occurs only after the petitioner. celebration of the marriage   If the respondent is convicted in a final judgment  Additionally, the new law no longer requires that prior to the celebration of the marriage, it is a there be sexual intercourse since any sexual act ground for annulment if the crime involves moral short of the actual sexual intercourse may fall turpitude and the fact of conviction is not under “sexual infidelity.” disclosed to the other party.  Moreover, the new law no longer requires that the sexual infidelity by a spouse be committed with a Drug addiction, habitual alcoholism, lesbianism or person of opposite sex for it to be a ground for homosexuality (pars. 5 and 6) legal separation –– which is a requirement under  The existence of any such circumstance, at the the old law since the crimes of adultery and time of the marriage, may not likewise qualify as a concubinage may be committed only by the ground for legal separation since in the latter, the spouses through sexual relations with an causes or grounds thereof must necessarily exist opposite sex. only after the celebration of the marriage.  If the drug addiction, habitual alcoholism, Sexual Perversion (par. 8) lesbianism or homosexuality is already present  According to the late Senator Tolentino, sexual during the time of the marriage but the same is perversion, as a ground for legal separation, concealed from the other party, there is fraud includes all unusual or abnormal sexual practices which constitutes as ground for annulment which may be offensive to the feelings or sense  If there is no concealment and such circumstance of decency of either the husband or the wife. is known to the other party at the time of the  If the husband uses force or threat of force, marriage, there is no ground to annul the physical or other harm or threat of physical or marriage. other harm, or intimidation, against his wife for the purpose of satisfying his sexual perversion, Contracting of Subsequent Bigamous Marriage (par. 7) the same also constitutes a crime under R.A. No.  Contracting a subsequent bigamous marriage is a 9262. ground to declare the subsequent marriage as void ab initio but it does not affect the validity of Attempt on the Life of the Spouse (par. 9) the prior marriage.  The obvious intent of the law is to require the  Considers the mere act of contracting a second presence of “intent to kill.” or subsequent marriage during the subsistence of  Thus, if the injury caused to a spouse is merely the prior valid marriage as a ground for legal accidental or not intentional, it will not be a separation, regardless of the fact that the second ground for legal separation even if the injury is marriage is void ab initio on grounds other than life-threatening. the existence of the first marriage  If the act of attempting to kill the spouse is wholly justified or excused, as in the case of Sexual Infidelity (par. 8) legitimate self-defense, the same is not a ground for legal justification. Prior to the Family Code  E.g. if the husband surprises his wife in an act of  Under the NCC, it is required that the sexual sexual intercourse with another man, the former infidelity must be in the form of adultery (on the has a ground for legal separation, although he had part of the wife) or concubinage (on the part of attempted to kill his wife immediately thereafter. the husband) before the same may constitute as In the said action for legal separation, the wife ground for legal separation. may not put up the defense of mutual guilt since  A single act of sexual intercourse on the part of the act of the husband in attempting to kill his the husband with a woman other than his spouse wife, given the said scenario, does not give rise to will not necessarily be a ground for legal a ground for legal separation on the part of the separation if such infidelity will not fall under wife. concubinage, as the term is defined under the  Under Article 247 of the RPC, if the husband shall RPC inflict upon his wife physical injuries of any kind  Note that for the crime of concubinage to be upon surprising her in the act of committing committed, it is required that the husband must sexual intercourse with another person, he shall either be exempt from punishment. o Keep a mistress in the conjugal dwelling; o Have sexual intercourse under Abandonment (par. 10) scandalous circumstances, with a woman  For abandonment to constitute a ground for legal who is not his wife; or separation, it is required that: o Cohabit with her in any other place. o The abandonment must be without a  A single act of sexual intercourse on the part of justifiable cause; and the wife with a man other than her husband is o The abandonment must be for more than always a ground for legal separation since the a year. same constitutes adultery.  A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling Under the Family Code without intention of returning.  Mere sexual infidelity is now a ground for legal  The spouse who has left the conjugal dwelling for separation, without requiring that the same be in a period of three months or has failed within the the form of adultery or concubinage. same period to give any information as to his or  A single act of sexual inter course on the part of her whereabouts shall be prima facie presumed to both the husband and the wife with a person have no intention of returning to the conjugal other than their spouse will now be a ground for dwelling. legal separation. II. Defenses in Legal Separation determination to mind before forgive an injury the offense Art. 56. The petition for legal separation shall be denied which was not has been on any of the following grounds: known until after it committed (1) Where the aggrieved party has condoned the was inflicted. offense or act complained of; (2) Where the aggrieved party has consented to the Connivance v. Collusion commission of the offense or act complained of; (3) Where there is connivance between the parties in Connivance Collusion the commission of the offense or act constituting Generally collusion for a May exist without the ground for legal separation; particular purpose connivance (4) Where both parties have given ground for legal separation; Connivance (par. 3) (5) Where there is collusion between the parties to  Connivance implies an agreement, express or obtain the decree of legal separation; or implied by both spouses to the ground for legal (6) Where the action is barred by prescription. separation (Atty. Asilo)  A husband who connives at or consents to Condonation (par. 1) adultery by his wife is deemed as consenting to it  Condonation is the conditional forgiveness or with others and cannot have a divorce (or legal remission, by a husband or wife, of a matrimonial separation) for a subsequent act with a different offense which the other has committed. person, though the act connived at was not  It is a conditional forgiveness because the committed; nor can he where the wife was led condonation is subject to an implied condition into it by connivance of a detective employed by that the party forgiven will abstain from the the husband, not for such purpose but to obtain commission of the like offense thereafter. evidence.  A breach of this condition revives the right of suit  Also, abandonment by the wife, knowing (as she for the original misconduct. said she did) that the husband would naturally  But while the condition remains unbroken, seek other women, was held to be connivance. condonation, on whatever motive it proceeded, is an absolute bar to the remedy for the particular Recrimination – Mutual Guilt (par. 4) injury condoned.  Legal separation to prosper, it must be claimed  Condonation may either be express, (i.e., signified only by the IS and where both spouses are by words or writing), or implied from the conduct offenders, a legal separation cannot be claimed of the parties. by either of them  The latter, however, is much the more common; and it is in regard to this that the chief legal Collusion (par. 5) difficulty has arisen.  Collusion is the agreement between husband and  The only general rule is, that any cohabitation wife for one of them to commit, or to appear to with the guilty party, after the commission of the commit, or to be represented in court as having offense, and with the knowledge or belief on the committed, a matrimonial offense, or to suppress part of the injured party of its commission, will evidence of a valid defense, for the purpose of amount to conclusive evidence of condonation; enabling the other a legal separation. but this presumption may be rebutted by  This agreement, if not express, may be implied evidence to the contrary. from the acts of the parties.  It has been held that collusion may not be Consent (par. 2) inferred from the mere fact that the guilty party  Consent is agreement or conformity in advance confesses to the offense and thus enables the of the commission of the act which would be a other party to procure evidence necessary to ground for legal separation. prove it.  It may be given expressly or impliedly.  There would be collusion if the parties had  Express consent is that directly given (i.e., their arranged to make it appear that a matrimonial viva voce or in writing). Implied consent is that offense had been committed although it was not, manifested by signs, actions, or facts, or by or if the parties had connived to bring about a inaction or silence, from which arises an inference legal separation even in the absence of grounds that the consent has been given. therefore. Condonation v. Consent v. Connivance Prescription Condonation Consent Connivance Art. 57. An action for legal separation shall be filed within Forgiveness of a Given in advance five years from the time of the occurrence of the cause. matrimonial or prior to the - offense after its commission of the If Not Interposed as a Defense commission act  It is true that the wife has not interposed Bilateral prescription as a defense. Nevertheless, the Unilateral Unilateral consent agreement courts can take cognizance thereof, because May take place Involves actions seeking a decree of legal separation, or without imputing criminality annulment of marriage, involve public interest the slightest blame - on individual and it is the policy of our law that no such decree to the party who who be issued if any legal obstacles thereto appear forgives the injury. connives upon the record. (Brown v. Yambao) Result of a - Act of the III. Effect of Death of a Party (4) The OS shall be disqualified from inheriting from the IS by intestate succession. Moreover,  Being personal in character, it follows that the provisions in favor of the OS made in the will of death of one party to the action causes the death the IS shall be revoked by operation of law. of the action itself –– action personalis moritur cum persona. Right to Live Separately (par. 1)  Hence, Sec. 21 of the Rule on Legal Separation  An action for legal separation involves nothing (A.M. No. 02-11-11-SC) now clearly provides: more than the bed-and-board separation of the spouses. Section 21. Effect of death of a party; duty of the Family Court or Appellate Court. Dissolution and Liquidation of Property Regime upon In case a party dies at any stage of the proceedings before Finality of the Decree (par. 2) the entry of judgment, the court shall order the case closed  In the distribution of the net profits of the and terminated without prejudice to the settlement of estate community property or conjugal partnership proper proceedings in the regular courts. property, the OS shall have no right to any share If the party dies after the entry of judgment, the same shall be of the same, which shall be forfeited in favor of binding upon the parties and their successors in interest in the the common children or, if there are none, the settlement of the estate in the regular courts. children of the guilty spouse by a previous marriage or in default of children, the IS. IV. Cooling Off Period  Procedurally, the Family Court trying the legal separation case shall, upon motion of either party, Art. 58. An action for legal separation shall in no case be proceed with the liquidation, partition and tried before six months shall have elapsed since the filing distribution of the properties of the spouses upon of the petition. entry of the judgment granting the petition for legal separation, or, in case of appeal, upon Art. 59. No legal separation may be decreed unless the receipt of the entry of the judgment of the Court has taken steps toward the reconciliation of the appellate court granting the petition. spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. Custody of children (par. 3)  The custody of the minor children shall be Concept awarded to the IS.  In this interim, the court should take steps toward  This rule is subject to the provisions of: getting the parties to reconcile.  The court where the action is pending shall Art. 213 (FC) – In case of separation of the parents, parental authority remain passive and is precluded from hearing the shall be exercised by the parent designated by the Court. The Court suit. shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.  GR – The case shall not be tried (on the merits) within six months from the filing of the petition No child under seven years of age shall be separated from the mother,  EXP – If the ground constituted “violence” as unless the court finds compelling reasons to order otherwise. defined in R.A. 9262 Sec. 28 (R.A. No. 9262) – prohibits the awarding of custody of minor Sec. 19. Legal Separation Cases. – In cases of legal separation, children to the perpetrator of a woman who is suffering from battered where violence as specified in this Act is alleged, Article 58 of woman syndrome. the Family Code shall not apply. The court shall proceed on the main case and other incidents of the case as soon as Disqualification to Inherit (par. 4) possible. The hearing on any application for a protection order filed by the petitioner must be conducted within the  Once the legal separation has been decreed, the mandatory period specified in this Act. OS shall be disqualified to inherit from the IS by intestate succession.  The cooling off period does not prevent the  Unless the decree of legal separation is set aside, Court from hearing a motion for preliminary the OS shall cease to be a legal heir of the IS. injunction to prevent the respondent from  The OS is not, however, disqualified to inherit managing the exclusive property of the from the IS by way of testate succession, petitioner. What is prohibited is trial on the merits although any provision in the latter’s will existing of the petition. (Somosa-Ramos v. Vamenta) at the time of the issuance of the decree of legal separation in favor of the former is considered V. Effects of Decree of Legal Separation revoked by operation of law.  This will not, however, prevent the IS from validly Art. 63. The decree of legal separation shall have the naming the OS as an heir in his or her will following effects: executed after the decree of legal separation. (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not V. Effects of Decree of Legal Separation be severed; (2) The absolute community or the conjugal A. The husband no longer has the right of consortium partnership shall be dissolved and liquidated but  The right of one spouse to the society or services the OS shall have no right to any share of the net of the other spouse is generally referred to as the profits earned by the absolute community or the right of consortium – or, more accurately, conjugal partnership, which shall be forfeited in consortium et servitium. accordance with the provisions of Article 43 (2);  “The term 'consortium' is not susceptible of (3) The custody of the minor children shall be precise or complete definition but, broadly awarded to the IS, subject to the provisions of speaking, companionship, love, affection, Article 213 of this Code; and comfort, mutual services, sexual intercourse – all  belonging to the marriage state – taken together mother, and shall be entitled to support in make up what we refer to as consortium.” conformity with this Code." This is the rule  Any tortious act committed against one spouse regardless of whether the father admits paternity. that results in a deprivation of consortium may be actionable by the spouse who has suffered the Sec. 28, R.A. 9262 deprivation. Sec. 28. Custody of children. – The woman victim of violence shall be entitled to the custody and support of her child/children. Children below B. Art. 63 (2) in relation to Art. 43 (2) seven (7) years old older but with mental or physical disabilities shall automatically be given to the mother, with right to support, unless the Art. 43. The termination of the subsequent marriage referred to in the court finds compelling reasons to order otherwise. preceding Article shall produce the following effects: A victim who is suffering from battered woman syndrome shall not be (2) The absolute community of property or the conjugal disqualified from having custody of her children. In no case shall partnership, as the case may be, shall be dissolved and liquidated, custody of minor children be given to the perpetrator of a woman who but if either spouse contracted said marriage in bad faith, his or her is suffering from Battered woman syndrome. share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common F. Donation Propter Nuptias children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse; Art. 64. After the finality of the decree of legal separation, the IS may revoke the donations made by him or by her in  It is only Alfredo’s share in the net profits which is favor of the OS, as well as the designation of the latter as forfeited in favor of Winifred. Article 102(4) of a beneficiary in any insurance policy, even if such the Family Code provides that "[f]or purposes of designation be stipulated as irrevocable. The revocation computing the net profits subject to forfeiture in of the donations shall be recorded in the registries of accordance with Article 43 (2) and 63 (2), the property in the places where the properties are located. said profits shall be the increase in value between Alienations, liens and encumbrances registered in good the market value of the community property at faith before the recording of the complaint for revocation the time of the celebration of the marriage and in the registries of property shall be respected. The the market value at the time of its dissolution." revocation of or change in the designation of the Clearly, what is forfeited in favor of Winifred is insurance beneficiary shall take effect upon written not Alfredo’s share in the conjugal partnership notification thereof to the insured. property but merely in the net profits of the conjugal partnership property. (Siochi v. Gozon) The action to revoke the donation under this Article must be brought within five years from the time the decree of C. Right to Inherit (Art. 63 (4)) legal separation has become final. D. Right to Receive Legal Support (Art. 198) Revocation of Donations (Art. 64) Art. 198. During the proceedings for legal separation or for annulment of  The decree of legal separation does not affect marriage, and for declaration of nullity of marriage, the spouses and the validity of any donation propter nuptias made their children shall be supported from the properties of the absolute by the IS in favor of the OS and neither does it community or the conjugal partnership. After the final judgment affect the validity of the designation of the latter granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may as beneficiary in any insurance policy of the order that the guilty spouse shall give support to the innocent one, former. specifying the terms of such order.  However, the IS has the right to revoke said donation, as well as the designation of the OS as E. Custody of Children beneficiary in his or her insurance policy, even if Art. 213. In case of separation of the parents, parental authority shall be such designation be stipulated as irrevocable. exercised by the parent designated by the Court. The Court shall take  The action to revoke the donation must be into account all relevant considerations, especially the choice of the brought within five years from the finality of the child over seven years of age, unless the parent chosen is unfit. decree of legal separation in the same court which decreed the legal separation; otherwise, Espiritu v. CA the same shall be considered barred by statute of  In ascertaining the welfare and best interests of limitations. the child, courts are mandated by the Family  In order to bind third persons, the complaint for Code to take into account all relevant revocation must be recorded in the registries of considerations. If a child is under seven years of property in the places where the properties are age, the law presumes that the mother is the best located. custodian. The presumption is strong but it is not  However, the revocation of said donation does conclusive. It can be overcome by "compelling not affect any alienation, lien or encumbrance reasons". If a child is over seven, his choice is registered in good faith before such recording. paramount but, again, the court is not bound by that choice. In its discretion, the court may find Revocation of the Designation of the OS as Beneficiary the chosen parent unfit and award custody to the in the Insurance Policy of the IS other parent, or even to a third party as it deems  Such revocation or change in the designation of fit under the circumstances. the insurance policy shall take effect only upon written notification thereof to the insurer. Briones v. Miguel  Having been born outside a valid marriage, the Cessation of Support minor is deemed an illegitimate child of petitioner  Upon the finality of the decree of legal and Respondent Loreta. Article 176 of the Family separation, the obligation of mutual support Code of the Philippines12 explicitly provides that between the spouses ceases. "illegitimate children shall use the surname and shall be under the parental authority of their   However, the court may, in its discretion, order Concept of Protection Order (Garcia v. Drilon) the guilty spouse to give support to the innocent  An order issued to prevent further acts of VAWC, one. their family or household members, and to grant other necessary reliefs. Wife’s Use of Username  The wife, even after the legal separation has been Purpose decreed, shall continue using her name and  Safeguard the offended parties from further surname employed before the legal separation. harm, minimize any disruption in their daily life and facilitate the opportunity and ability to regain G. Art. 86 (4) control of their life. Art. 86. A donation by reason of marriage may be revoked by the donor Scope in the following cases: (4) Upon legal separation, the donee being the guilty spouse;  This serves to safeguard the victim from greater risk of violence; to accord the victim and any VI. Protection Orders designated family or household member safety in the family residence, and to prevent the Anti-Violence Against Women and Their Children Act of perpetrator from committing acts that jeopardize 2004 (Garcia v. Drilon) the employment and support of the victim.  R.A. 9262 is a landmark legislation that defines  It also enables the court to award temporary and criminalizes acts of violence against women custody of minor children to protect the children and their children (VAWC) perpetrated by from violence, to prevent their abduction by the women's intimate partners, i.e, husband; former perpetrator and to ensure their financial support. husband; or any person who has or had a sexual or dating relationship, or with whom the woman Three Kinds of Protection Order has a common child.  The law provides for protection orders from the  Barangay Protection Order (BPO) barangay and the courts to prevent the Sec. 14. Barangay Protection Orders (BPOs); Who May Issue commission of further acts of VAWC; and and How. – Barangay Protection Orders (BPOs) refer to the outlines their duties and responsibilities in protection order issued by the Punong Barangay ordering the responding to complaints of VAWC or requests perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act. for assistance. A Punong Barangay who receives applications for a BPO shall Sec. 3 of R.A. 9262 issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to act on Sec 3. Definition of Terms. – As used in this Act, the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a a) "Violence against women and their children" refers to any act Barangay Kagawad, the order must be accompanied by an or a series of acts committed by any person against a woman attestation by the Barangay Kagawad that the Punong who is his wife, former wife, or against a woman with whom Barangay was unavailable at the time of the issuance of the the person has or had a sexual or dating relationship, or with BPO. whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, BPOs shall be effective for fifteen (15) days. Immediately after which result in or is likely to result in physical, sexual, the issuance of an ex parte BPO, the Punong Barangay or psychological harm or suffering, or economic abuse including Barangay Kagawad shall personally serve a copy of the same threats of such acts, battery, assault, coercion, harassment or on the respondent, or direct any barangay official to effect its arbitrary deprivation of liberty. It includes, but is not limited to, personal service. the following acts: The parties may be accompanied by a non-lawyer advocate in A. "Physical Violence" refers to acts that include bodily any proceeding before the Punong Barangay. or physical harm; Sec. 3 of R.A. 9262 (Go-Tan v. Spouses Tan)  Temporary Protection Order (TPO)  While the said provision provides that the Sec. 15. Temporary Protection Orders. – Temporary Protection offender be related or connected to the victim by Orders (TPOs) refers to the protection order issued by the marriage, former marriage, or a sexual or dating court on the date of filing of the application after ex parte relationship, it does not preclude the application determination that such order should be issued. A court may grant in a TPO any, some or all of the reliefs mentioned in this of the principle of conspiracy under the RPC. Act and shall be effective for thirty (30) days. The court shall schedule a hearing on the issuance of a PPO prior to or on the Section 47 (R.A. 9262). Suppletory Application. - For purposes date of the expiration of the TPO. The court shall order the of this Act, the Revised Penal Code and other applicable laws, immediate personal service of the TPO on the respondent by shall have suppletory application. the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO shall include Art. 10 (RPC). Offenses not subject to the provisions of this notice of the date of the hearing on the merits of the issuance Code. – Offenses which are or in the future may be punishable of a PPO. under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless  Permanent Protection Order (PPO) the latter should specially provide the contrary. Sec 16. Permanent Protection Orders. – Permanent Protection  Hence, legal principles developed from the Penal Order (PPO) refers to protection order issued by the court Code may be applied in a supplementary capacity after notice and hearing. to crimes punished under special laws, such as Respondents non-appearance despite proper notice, or his R.A. No. 9262, in which the special law is silent on lack of a lawyer, or the non-availability of his lawyer shall not a particular matter. be a ground for rescheduling or postponing the hearing on the merits of the issuance of a PPO. If the respondents appears without counsel on the date of the hearing on the PPO, the court shall appoint a lawyer for the respondent and immediately proceed with the hearing. In case the respondent  fails to appear despite proper notice, the court shall allow ex the spouses’ property to companies controlled by parte presentation of the evidence by the applicant and the two children. render judgment on the basis of the evidence presented. The court shall allow the introduction of any history of abusive  The wife states that Art. 12 (C) and Arts. 68 and conduct of a respondent even if the same was not directed 69 (FC) support her position that as spouses, against the applicant or the person for whom the applicant is they are duty bound to live together and care for made. each other. The court shall, to the extent possible, conduct the hearing on  When the Court was convinced that the husband the merits of the issuance of a PPO in one (1) day. Where the was not mentally incapacitated to choose court is unable to conduct the hearing within one (1) day and whether to see his wife or not, the Court held – the TPO issued is due to expire, the court shall continuously extend or renew the TPO for a period of thirty (30) days at each particular time until final judgment is issued. The The law provides that the husband and the wife are obliged to extended or renewed TPO may be modified by the court as live together, observe mutual love, respect and fidelity. The may be necessary or applicable to address the needs of the sanction therefor is the “spontaneous, mutual affection applicant. between husband and wife and not any legal mandate or court order” to enforce consortium. The court may grant any, some or all of the reliefs specified in Section 8 hereof in a PPO. A PPO shall be effective until Obviously, there was absence of empathy between spouses revoked by a court upon application of the person in whose Erlinda and Potenciano, having separated from bed and board favor the order was issued. The court shall ensure immediate since 1972. We defined empathy as a shared feeling between personal service of the PPO on respondent. husband and wife experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual The court shall not deny the issuance of protection order on communion. Marital union is a two-way process. the basis of the lapse of time between the act of violence and the filing of the application. Marriage is definitely for two loving adults who view the relationship with “amor gignit amorem” respect, sacrifice and Regardless of the conviction or acquittal of the respondent, a continuing commitment to togetherness, conscious of its the Court must determine whether or not the PPO shall value as a sublime social institution. become final. Even in a dismissal, a PPO shall be granted as long as there is no clear showing that the act from which the Other Remedies order might arise did not exist.  While the courts cannot force one of the spouses to cohabit with the other, the law, however, Violation of Protection Orders provides for other remedies and sanctions. Sec. 21. Violation of Protection Orders. – A complaint for a violation of a  For example, if a spouse without just cause BPO issued under this Act must be filed directly with any municipal trial abandons the other, the aggrieved spouse may court, metropolitan trial court, or municipal circuit trial court that has petition the court for receivership, for judicial territorial jurisdiction over the barangay that issued the BPO. Violation of a BPO shall be punishable by imprisonment of thirty (30) days separation of property or for authority to be the without prejudice to any other criminal or civil action that the offended sole administrator of the absolute community or party may file for any of the acts committed. of the conjugal partnership property.  Upon a judicial declaration of abandonment of his A judgement of violation of a BPO may be appealed according to the Rules of Court. During trial and upon judgment, the trial court may motu or her children, the parent concerned may proprio issue a protection order as it deems necessary without need of likewise be deprived of parental authority. The an application. deserted spouse cannot likewise be obliged to Violation of any provision of a TPO or PPO issued under this Act shall give support to the other spouse who refuses to constitute contempt of court punishable under Rule 71 of the Rules of live with him or her without just cause. Court, without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed. B. To observe mutual love, respect, and fidelity VII. Rights and Obligations between Husband and Wife  This obligation between the spouses cannot be compelled, elicited or imposed by court action. Art. 68. The husband and wife are obliged to live together, Nevertheless, the law provides for sanctions for observe mutual love, respect and fidelity, and render non-observance of fidelity. mutual help and support.  For example, the Revised Penal Code penalizes the acts of contracting of two or more marriages A. To live together and of having extramarital affairs, (i.e., bigamy, concubinage, adultery, and the spouse who is  Cohabitation – public assumption by a man and a guilty of adultery or concubinage is not entitled woman of the marital relation, and dwelling to support from the other spouse. together as man and wife, thereby holding  Also, the Family Code considers sexual infidelity themselves out to the public as such. as a ground for legal separation.  EXP: Art. 69 Art. 204. The person obliged to give support shall have the C. To render mutual help and support option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling  The husband and wife assume a mutual obligation the person who has a right to receive support. The latter of support upon marriage, such that each spouse alternative cannot be availed of in case there is a moral or legal obstacle thereto. is obligated to support each other.  Such obligation to support one’s spouse attaches Illuserio v. Illuserio-Bildner at the inception of the marriage and ordinarily  The wife filed a petition with the Court of continues as long as the relationship of husband Appeals for habeas corpus to have custody of her and wife exists. Hence, once the marriage is husband in consortium alleging that her children terminated, the obligation to give support ceases. were illegally restraining her husband to  Of the mutual obligations between the spouses, fraudulently deprive her of property rights out of it is only the obligation of mutual support pure greed. She claimed that her two children between the spouses which can be enforced were using their sick and frail father to sign away through legal action. Pelayo v. Lauron separate property of the spouse who has not obtained consent. Facts: Arturo Pelayo (plaintiff) was a physician whom the The foregoing provisions shall not prejudice the rights of spouses Marcelo Lauron and Juana Abella (defendants) creditors who acted in good faith. called one evening to their house to render medical assistance to their daughter-in-law who was about to Sec. 5 (2) (4) of R.A. 9262 give birth to a child. The daughter-in-law lived with her husband independently and in a separate house without  Sec. 5. Acts of Violence Against Women and Their Children.- any relation whatever with the defendants, and on the The crime of violence against women and their children is committed through any of the following acts. day she gave birth she was in the house of the defendants only by chance. (e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has The plaintiff rendered the medical assistance, but the the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting daughter-in-law died in consequence of the child-birth. to restrict or restricting the woman's or her child's freedom of Plaintiff sought to recover P500 for professional services. movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation RTC: The defendants were absolved from the former directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or complaint, on account of the lack of sufficient evidence effect of controlling or restricting the woman's or her child's to establish a right of action against the defendants. movement or conduct: Ruling: The rendering of medical assistance in case of (4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the illness is comprised among the mutual obligations to victim's own mon4ey or properties, or solely controlling the which spouses are bound by way of mutual support. conjugal or common money, or properties; When either of them by reason of illness should be in need of medical assistance, the other is under the Sec. 3 (a) (D) (1) of R.A. 9262 unavoidable obligation to furnish the necessary services  Sec. 3. Definition of Terms.- As used in this Act, of a physician in order that health may be restored; the party bound to furnish such support is therefore, liable for (a) "Violence against women and their children" refers to any act or a series of acts committed by any person against a all expenses, including the fees of the medical expert for woman who is his wife, former wife, or against a woman with his professional services. whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family This liability arises from the obligation which the law has abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including expressly established between married couples. It is threats of such acts, battery, assault, coercion, harassment or therefore the husband of the patient who is bound to pay arbitrary deprivation of liberty. It includes, but is not limited to, the following acts: for the services of the plaintiff. The fact that it was not the husband who called the plaintiff and requested the D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes, but is medical assistance for his wife is no bar to his fulfillment not limited to the following: of the said obligation, as the defendants, in view of the 1. withdrawal of financial support or preventing the victim imminent danger to which the life of the patient was at from engaging in any legitimate profession, occupation, that moment exposed, considered that medical business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as assistance was urgently needed. Therefore, plaintiff defined in Article 73 of the Family Code; should direct his action against the husband of the patient, and not against her parents-in-law. Note (Atty. Asilo): If no benefit has accrued to the family, such obligation shall be enforced against separate D. To choose or establish family domicile (EXP. Art. 69) property of the spouse who has not obtained consent. VIII. Property Relations Between Husband and Wife Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court Art. 74. The property relationship between husband and may exempt one spouse from living with the other if the wife shall be governed in the following order: latter should live abroad or there are other valid and compelling reasons for the exemption. However, such (1) By marriage settlements executed before the exemption shall not apply if the same is not compatible marriage; with the solidarity of the family. (2) By the provisions of this Code; and (3) By the local custom. E. Exercise of Profession, Business, or Activity Art. 75. The future spouses may, in the marriage Art. 73 as Amended by R.A. 10572 settlements, agree upon the regime of absolute  Sec. 1. Art. 73 of the Family Code, as amended, is hereby community, conjugal partnership of gains, complete further amended to read as follows: separation of property, or any other regime. In the absence of a marriage settlement, or when the regime Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the agreed upon is void, the system of absolute community other. The latter may object only on valid, serious, and moral of property as established in this Code shall govern. grounds. Art. 76. In order that any modification in the marriage In case of disagreement, the court shall decide whether or settlements may be valid, it must be made before the not: celebration of the marriage, subject to the provisions of (1) The objection is proper, and Articles 66, 67, 128, 135 and 136. (2) Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the Art. 77. The marriage settlements and any modification objection, the resulting obligation shall be enforced against the community property. If the benefit accrued thereof shall be in writing, signed by the parties and thereafter, such obligation shall be enforced against the executed before the celebration of the marriage. They shall not prejudice third persons unless they are Art. 119. The future spouses may in the marriage settlements agree upon absolute or relative community of property, or registered in the local civil registry where the marriage upon complete separation of property, or upon any other contract is recorded as well as in the proper registries of regime. In the absence of marriage settlements, or when the same are void, the system of relative community or conjugal properties. partnership of gains as established in this Code, shall govern the property relations between husband and wife. Art. 78. A minor who according to law may contract  If the marriage was celebrated after, the system marriage may also execute his or her marriage of absolute community of property shall govern. settlements, but they shall be valid only if the persons – Art. 75 designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same provisions of Title IX of this Code. proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving Art. 79. For the validity of any marriage settlement spouse shall liquidate the community property either judicially executed by a person upon whom a sentence of civil or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, interdiction has been pronounced or who is subject to no liquidation is made, any disposition or encumbrance any other disability, it shall be indispensable for the involving the community property of the terminated marriage shall be void. guardian appointed by a competent court to be made a party thereto. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall Art. 80. In the absence of a contrary stipulation in a govern the property relations of the subsequent marriage. marriage settlement, the property relations of the Art. 130. Upon the termination of the marriage by death, the spouses shall be governed by Philippine laws, regardless conjugal partnership property shall be liquidated in the same of the place of the celebration of the marriage and their proceeding for the settlement of the estate of the deceased. residence. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within six months from the death This rule shall not apply: of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated (1) Where both spouses are aliens; marriage shall be void. (2) With respect to the extrinsic validity of contracts Should the surviving spouse contract a subsequent marriage affecting property not situated in the Philippines without compliance with the foregoing requirements, a and executed in the country where the property mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. is located; and (3) With respect to the extrinsic validity of contracts C. Law that Governs Property Relations (of Filipino entered into in the Philippines but affecting spouses) – Art. 80 property situated in a foreign country whose laws require different formalities for its extrinsic Exceptions validity.  Art. 80 (2) (3)  Art. 16 (NCC) Art. 81. Everything stipulated in the settlements or Art. 16. Real property as well as personal property is subject to contracts referred to in the preceding articles in the law of the country where it is stipulated. consideration of a future marriage, including donations However, intestate and testamentary successions, both with between the prospective spouses made therein, shall be respect to the order of succession and to the amount of rendered void if the marriage does not take place. successional rights and to the intrinsic validity of However, stipulations that do not depend upon the testamentary provisions, shall be regulated by the national law celebration of the marriages shall be valid. of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. VIII (Cont). Effect of Non-Celebration of Marriage Where both spouses are aliens, their property relations 1. What Shall Govern Their Property Relations shall be governed by their national law (Orion Savings Bank v. Suzuki) A. Marriage Settlement (if one is executed) – Art. 77  Effect of non-celebration of marriages – Arts. 77, IX. Donation by Reason of Marriage or Propter Nuptias – 78, 79, 81 Arts. 82 – 87  Art. 1403 (2) (c) of the NCC  Requisites – Art. 82 Art.1403. The following contracts are unenforceable, unless  Donation propter nuptias between future they are ratified: spouses (2) Those that do not comply with the Statute of Frauds as set o With respect to present property forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the  If the regime agreed upon is ACP, same, or some note or memorandum, thereof, be in writing, there is no limitation and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received  If the regime agreed upon is without the writing, or a secondary evidence of its contents: other than ACP, they cannot (c) An agreement made in consideration of marriage, other donate more than 1/5 of their than a mutual promise to marry; present property. Only excess shall be void. B. In case of absence of marriage settlement or if the same is void  Art. 84. If the future spouses agree upon a regime other than  If the marriage was celebrated prior to the the absolute community of effectivity of the FC (Aug. 3, 1988), the system of property, they cannot donate to conjugal partnership of gains shall govern. each other in their marriage settlements more than one-fifth  of their present property. Any excess shall be considered void. o With respect to form – donation propter nuptias must comply with Arts. 748 and 749 of NCC because it is inter-vivos (to take effect during the lifetime of the donor and done) o The foregoing rule as to form shall only be applicable to donation propter nuptias made during the effectivity of the FC, otherwise, if the donation propter nuptias was made before the effectivity of the FC, the NCC provisions shall apply. o Note: Read 1) Valencia v. Locquiao and Cano v. Cano  With respect to future property o Only future spouses are allowed to make donation propter nuptias; others are not (Read Art. 751 of the NCC) o Governed by the law on testamentary succession and should follow the formalities of wills (Read the law on succession, RE: Testamentary succession of wills  Effect of the following circumstances upon donation propter nuptias o Non-celebration of the marriage o When marriage is judicially declared void  Exceptions o When marriage is annulled o When a decree of legal separation is issued o When the resolutory condition is complied with o If the done commits an act of ingratitude (Read Art. 765 of NCC)