Legal Separation, A56 Family Code
1. Concept
Legal separation –
• … refers to the state or condition wherein legally married couples choose to live physically separate lives and forego cohabitation.
• … is nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction). (Sy v. Eufemio, En Banc, G.R. No. L-30977, 31 January 1972, Per Reyes, J.B.L., J.)
a. Status: Legally Married
While living separately, couples who are legally separated are still legally married. To be clear, under the eyes of the law, they are still husband and wife for all intents and purposes.
1) Liabilities
1) As legally separated couples are still considered legally married, they may open themselves to certain liabilities if they engage in romantic/sexual relationships. For instance, legally separated couples may be charged with the offense of adultery, concubinage, and other related offenses.
3. Grounds for Legal Separation
To be legally separated, a married couple must initiate a legal action for legal separation before a regular court. The grounds for legal separation are as follows:
NB: Click on any of the above grounds for more information.
4. Grounds for denial of legal separation
| Grounds for Denial of Petition for Legal Separation | 1) Condonation |
| 2) Consent | |
| 3) Connivance | |
| 4) In pari delicto | |
| 5) Collusion | |
| 6) Prescription |
NB: Click on any of the above grounds for more information.
5. Procedure
Related: Procedure for Legal Separation, A58-62 Family Code
6. Effects of Decree of Legal Separation
Related: Effects of Decree of Legal Separation, A63-64 Family Code
7. Reconciliation
Related: Reconciliation, A65 Family Code
8. Distinguished from Other Arrangements
Legal separation should be distinguished from other arrangements as described below.
a. Legal Separation vs De Facto Separation
| Factors | Legal Separation | De Facto Separation |
| Legal Status | Legally Married | Legally Married |
| Property Regime | Dissolved | No change |
De facto separation – refers to the state or condition wherein a legally married couple are choosing to live separately but has not undergone any court action to obtain a judicial decree of legal separation.
In legal separation, the couple are still legally married under the law even after obtaining a Judicial Decree of Legal Separation. As for their property regime, it is dissolved.
On the other hand, in a de facto separation, the couple is also considered legally married. However, their property regime remains unchanged.
b. Legal Separation vs Nullity of Marriage
| Factors | Legal Separation | Nullity of Marriage |
| Legal Status | Legally Married | Never married (from the beginning) |
| Property Regime | Depends on Judicial Declaration of Legal Separation | Dissolved |
Nullity of marriage – refers to the judicial declaration of a void marriage.
In a nullity of marriage, after securing a judicial declaration of nullity of marriage, it is as if the couples were never married since their marriage is void ab initio (from the beginning). Their property regime is likewise dissolved.
c. Legal Separation vs Annulment of Marriage
| Factors | Legal Separation | Annulment of Marriage |
| Legal Status | Legally Married | Marriage is dissolved |
| Property Regime | Depends on Judicial Declaration of Legal Separation | Dissolved |
Annulment of marriage – refers to the judicial dissolution of a voidable marriage.
In annulment of marriage, after securing a judicial decree of annulment of marriage, their marriage is dissolved, i.e., they were previously married but are no longer. Further, their property regime is likewise dissolved.
d. Legal Separation vs Absolute Divorce
| Factors | Legal Separation | Absolute Divorce |
| Legal Status | Legally Married | No absolute divorce in the Philippines |
| Property Regime | Depends on Judicial Declaration of Legal Separation | N/A |
1) The Civil Code of the Philippines… does not admit absolute divorce, quo ad vinculo matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly prescribes that “the marriage bonds shall not be severed” (Art. 106, subpar. 1). (Tenchavez v. Escaño, En Banc, G.R. No. L-19671, 29 November 1965, Per Reyes, J.B.L., J.; NB: Although the case cites Civil Code provisions, it is submitted that the rationale applies as well to the Family Code equivalent provisions.)
1) Exception: Code of Muslim Personal Laws of the Philippines
P.D. 1083, Code of Muslim Personal Laws of the Philippines:
Article 34. Mutual rights and obligations.
x x x
(3) The husband and the wife shall inherit from each other in accordance with this Code.
Related: See Chapter Three – Divorce (Talaq), Title II, P.D. 1083
e. Legal Separation vs Psychological Incapacity
| Factors | Legal Separation | Psychological Incapacity |
| Legal Status | Legally Married | Void Marriage |
| Property Regime | Depends on Judicial Declaration of Legal Separation | Depends on Judicial Declaration of Nullity of Marriage |
1) The existence of grounds for legal separation does not foreclose the possibility of psychological incapacity. (Yokogawa-Tan v. Republic, G.R. No. 254646, 23 October 2023, Per Leonen, SAJ.)
2) Article 36 is not to be equated with legal separation in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like. (Dedel v. CA, G.R. No. 151867, 29 January 2004, Per Ynares-Santiago, J.)
