Consent, A56(2) Family Code
1. Concept
Consent – means “to give assent or approval”. (Merriam-Webster, n.d. Available at: https://www.merriam-webster.com/dictionary/consent [Accessed: 18 April 2025])
2. Consent
Art. 56. The petition for legal separation shall be denied on any of the following grounds:
x x x
(2) Where the aggrieved party has consented to the commission of the offense or act complained of;
x x x
1) The aggrieved party has consented to the commission of the offense or act complained of, is a ground for denying legal separation.
2) A petition for legal separation will not be granted if the spouse who claims to have been wronged actually gave permission for, agreed to, or approved the wrongful act in question. This is because legal separation is intended to protect a spouse who is truly aggrieved—not someone who knowingly allowed or supported the behavior they are now complaining about. Consent, whether expressed directly or implied through supportive behavior, undermines the claim of injury. (OpenAI ChatGPT-4 [2025], reviewed by J. Del Puerto. Available at: https://chat.openai.com [Accessed: 18 April 2025])
3) Consent may be either by:
(a) Express; or
(b) Implied.
a. Express consent
1) There is express consent if it is clear from the words and/or actions of innocent spouse that he/she has consented to the commission of the offense or act complained of.
2) For example, an innocent spouse who enters into an agreement that the guilty spouse may engage in sexual infidelity is giving express consent.
Matubis v. Praxedes, En Banc, G.R. No. L-11766, October 25, 1960, Per Paredes, J.:
• Alleging abandonment and concubinage, plaintiff [S.] Matubis, filed with the Court of First Instance of Camarines Sur, on April 24, 1956, a complaint for legal Separation and changed of surname against her husband defendant [Z.] Praxedes.
• Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines Sur. For failure to agree on how they should live as husband and wife, the couple, on May 30, 1944, agreed to live separately from each other, which status remained unchanged until the present. On April 3, 1948, plaintiff and defendant entered into an agreement (Exhibit B), the significant portions of which are hereunder reproduced..
. . . (a) That both of us relinquish our right over the other as legal husband and wife.
(b) That both without any interference by any of us, nor either of us can prosecute the other for adultery or concubinage or any other crime or suit arising from our separation.
(c) That I, the, wife, is no longer entitled for any support from my husband or any benefits he may received thereafter, nor I the husband is not entitled for anything from my wife.
(d) That neither of us can claim anything from the other from the time we verbally separated, that is from May 30, 1944 to the present when we made our verbal separation into writing.
• In January, 1955, defendant began cohabiting with one [A.] Rebulado and on September 1, 1955, said [A. Rebulado] gave birth to a child who was recorded as the child of said defendant (Exh. C.).It was shown also that defendant and [A. Rebulado] deported themselves as husband and wife and were generally reputed as such in the community.
• [SC Resolution] The very wording of the agreement Exhibit B. gives no room for interpretation other than that given by the trial judge. Counsel in his brief submits that the agreement is divided in two parts. The first part having to do with the act of living separately which he claims to be legal, and the second part — that which becomes a license to commit the ground for legal separation which is admittedly illegal. We do not share appellant’s view. Condonation and consent on the part of plaintiff are necessarily the import of paragraph 6(b) of the agreement. The condonation and consent here are not only implied but expressed. The law (Art. 100 Civil Code), specifically provides that legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Having condoned and/or consented in writing, the plaintiff is now undeserving of the court’s sympathy (People vs. Scheneckenburger, 73 Phil., 413). Plaintiff’s counsel even agrees that the complaint should be dismissed.
b. Implied consent
1) There is implied consent if, notwithstanding any clear statement or action showing consent, it can instead be inferred from the actions and/or behavior of the innocent spouse that he/she has consented thereto.
2) For example, an innocent spouse who allows the paramour of the guilty spouse into their home and leaving the paramour and the guilty spouse alone inside a room despite knowing of the latter two’s sexual infidelity is giving implied consent.
3. Examples
Example 1 – Daniel and Rachel:
Rachel knew that Daniel was involved in an extramarital relationship. Instead of objecting, she allowed it to continue because she believed it would prevent further conflicts in their marriage. They even agreed not to interfere in each other’s personal lives. Two years later, Rachel filed for legal separation on the ground of Daniel’s affair. The petition may be denied because Rachel had knowingly consented to the very conduct she now uses as the basis for separation. (OpenAI ChatGPT-4 [2025], reviewed by J. Del Puerto, supra.)
Example 2 – Emilio and Grace:
Grace frequently invited Emilio to parties where drug use was common. She not only tolerated his drug use but supplied him with money for it and joined him on multiple occasions. Later, she filed for legal separation, citing his substance abuse as the main ground. Since Grace had actively supported or permitted the misconduct, the court might reject her petition on the basis that she had consented to the behavior. (Ibid.)
Example 3 – Leo and Carla:
Carla discovered that Leo had questionable business dealings involving fraud. Instead of reporting or confronting him, she helped him cover up the transactions and benefited financially from them. When their relationship deteriorated, Carla filed for legal separation due to Leo’s fraudulent activities. However, because she had allowed—and even enabled—the behavior, her petition could be dismissed for having consented to the offense. (Ibid.)
