I.

INTRODUCTION TO MARRIAGE
Once you tie the knot, the whole mechanics of the relationship

changes. You are tied to one another, you have made a commitment, and
you can't simply walk out when things don't go your way. You're in this for
the long haul and that commitment makes all the difference. The degree of
love and affection that you share will intensify immeasurably. You will find
that there is potential in your relationship for the bonding of two souls within
the security of marriage. When you love someone and get married to them,
you do not love them all the time, in exactly the same way, from moment to
moment. It is an impossibility. It is even a lie to pretend to. And yet this is
exactly what most of us demand. We have so little faith in the ebb and flow
of life, of love, of marriage. We leap at the flow of the tide and resist in
terror of its ebb.
Marriage is far beyond what it has been previously defined in history.
Present day society has made marriage a significant rite of passage, a way
to show maturity, or the complete path to becoming a functioning member
of society. The act of becoming married truly states to society I am ready to
comply with social norms, and therefore become accepted. Existing and
participating in this structure unconsciously states that this relationship is
more worthy than others.
Its already a given that this paper will discuss about legal separation
and the six months reglementary period before a petition for the same will

be tried, therefore, it is important we should understand first what is

marriage and its different concepts to arrive at a concrete and relevant
conclusion about the main topic of this research paper.

A.

MARRIAGE DEFINED
Marriage is commonly referred to as wedlock or matrimony. It is a

union of spouses which establishes rights and obligations between them,

their children and their in-laws. The definition of marriage varies according to
different cultures and beliefs. Generally, it is often viewed as a contract
between the parties contracting it. In an article dated 1995, in the Journal
of the Royal Anthropological Institute (formerly known as MAN),
Edmund Leach enumerated the rights and obligations resulting from
marriage. Those rights are:
1.
2.
3.
4.
5.

To
To
To
To
To

establish a legal father of a woman's children.

establish a legal mother of a man's children.
give the husband a monopoly in the wife's sexuality.
give the wife a monopoly in the husband's sexuality.
give the husband partial or monopolistic rights to the wife's

domestic and other labor services.

6. To give the wife partial or monopolistic rights to the husband's
domestic and other labor services.
7. To give the husband partial or total over property belonging or
potentially accruing to the wife.
8. To give the wife partial or total over property belonging or
potentially accruing to the husband.

9. To establish a joint fund of property a partnership for the benefit

of the children of the marriage.
10. To establish a socially significant 'relationship of affinity' between
the husband and his wife's brothers.

In the Philippines, Article 1 of the Family Code of the Philippines

provides the definition of marriage congruent to our culture and society.

Article 1. Marriage is a special contract of permanent union between a

man and a woman entered into in accordance with law for the establishment
of conjugal and family life. It is the foundation of the family and an inviolable
social institution whose nature, consequences, and incidents are governed
by law and not subject to stipulation, except that marriage settlements may
fix the property relations during the marriage within the limits provided by
this Code.
Article 68 of the Family Code lays down the basic marital obligations of
which, must be discharged by both spouses throughout the marriage.
Article 68. The husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help and support.

B.

TYPES OF MARRIAGE ACCORDING TO ITS CELEBRATION

1.

CIVIL MARRIAGE
A civil marriage is one where the marriage ceremony has a

government or civil official perform the ceremony.

A civil marriage is a wedding that takes place without any
religious affiliation and meets the legal requirements of the locale.
Some countries require that a couple have their first marriage
ceremony be a civil ceremony in a public location and that the
ceremony is open to the public. The couples can then be married in a
church and have a religious ceremony performed by a member of the
clergy.

2.

RELIGIOUS MARRIAGE
Religious Marriage, also called matrimony, is the covenant by

which a man and a woman establish between themselves a

partnership of the whole of life and which is ordered by its nature to
the good of the spouses and the procreation and education of
offspring, and which is performed and perfected according to their
religious rites and beliefs.
4

II.

WAYS TO DISSOLVE MARRIAGE

There are various ways to legally terminate, if not, taint the marriage
bond between the spouses. This chapter has the job of discussing those
factors. Also, since the paper is about legal separation and its six months
reglementary period, this chapter will include only a small definition of what
it is. There will be a whole chapter dedicated to legal separation.

A.

ANNULMENT
Annulment applies to marriages that are considered valid until

annulled and are referred to as voidable marriages. Annulment is a legal

process of declaring a marriage void after final judgment. Here in the
Philippines, annulment has six grounds for declaring the marriage annulled.
Article 45 of the Family Code enumerates these factors which must be
existing at the time of the celebration of marriage for it to be annulled. They
are:
a. That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized without
the consent of the parents, guardian or person having
5

substitute parental authority over the party, in that order,

unless after attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as husband
and wife;
b. That either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other as
husband and wife;
c. That the consent of either party was obtained by fraud, unless
such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as
husband and wife;
d. That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited
with the other as husband and wife;
e. That either party was physically incapable of consummating
the marriage with the other, and such incapacity continues
and appears to be incurable;
f. That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable.

B.

DECLARATION OF NULLITY

Here the marriage is void ab initio or void right from the very
beginning. Void marriages are found in Articles 35, 36, 37, 38, 44, and 53 of
the Family Code of the Philippines.

Article 35 is void ab initio for absence of the essential or formal

requisites of marriage.
Article 36 is a much broader category in declaring the marriage
void from the start because it talks about psychological

incapacity.
Article 37 are those void marriages because they are incestuous

therefor is not recognized as valid right from the get go.

Article 38 enumerates nine grounds for declaring a marriage void

ab initio for reasons of public policy.

Article 44 refers to subsequent marriages that were enacted in
bad faith in judicially declaring the absentee spouse as
presumptively dead to contract a subsequent marriage. The

effect of which will render the marriage void from the beginning.
Article 53 demands the spouses to comply with the requirements
of Article 52 so as not to render the subsequent marriage void ab
initio.

C.

DIVORCE
There are two kind of divorce:
1.

ABSOLUTE DIVORCE

Here

the

marriage

is

dissolved.

(Not

recognized

in

the

Philippines)
2.

RELATIVE DIVORCE OR LEGAL SEPARATION

Here the marriage is not dissolved but the spouses are entitled to

live separately.

D.

SEPARATION IN FACT OR EXTRALEGAL SEPARATION

Here the couples have either mutually agreed to separate without
judicial order, or one of the spouse has refused to cohabit with the
other.

III.

A.

LEGAL SEPARATION

LEGAL SEPARATION DEFINED

Legal Separation is a legal process by which a married couple may

formalize a de facto separation while remaining legally married. A legal

separation is granted in the form of a court order.
Furthermore, in cases where children are involved, a court order of
legal separation often makes temporary arrangements for the care, custody,
and financial support of the children ("for the time being"). Thus, part of the
8

court order determines child custody. Some couples obtain a legal separation
as an alternative to a divorce, based on moral or religious objections to
divorce. However, since divorce is not recognized here in the Philippines,
couples are limited to annulment, legal separation, separation in fact and
lastly, declaration of nullity of marriage.
In instances wherein couples might reconcile, in which case, under
Philippine laws, they have to comply with Article 65 of the Family Code after
successfully getting the decree of legal separation. Article 65 states:
Art. 65. If the spouses should reconcile, a corresponding joint
manifestation under oath duly signed by them shall be filed with the
court in the same proceeding for legal separation.

1.

GROUND FOR FILING A PETITION FOR LEGAL SEPARATION

Article 55 of the Family Code of the Philippines lays down ten exclusive
grounds in filing a petition for legal separation. Only a mere
preponderance of evidence is needed to prove the existence of any of
the grounds, although the one specified in number four, previous
criminal conviction is essential (a separate case) in view of the
necessity of a final judgment.

Art. 55. A petition for legal separation may be filed on any of the
following grounds:
(1) Repeated physical violence or grossly abusive conduct directed
against the petitioner, a common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to
change religious or political affiliation;
(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;
(4) Final judgment sentencing the respondent to imprisonment of more
than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage,
whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable
cause for more than one year.

10

For purposes of this Article, the term "child" shall include a child by
nature or by adoption.

2.

EFFECTS OF LEGAL SEPARATION

In successfully achieving the decree of legal separation, Article 63 of
the Family Code states:

Art. 63. 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 bonds shall not be severed;
(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, which shall be forfeited in accordance with
the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting from the
innocent spouse by intestate succession. Moreover, provisions in favor
of the offending spouse made in the will of the innocent spouse shall
be revoked by operation of law.
11

IV.

IMPEDIMENTS OF LEGAL SEPARATION

We already understand what marriage is and its different forms and

practices. The state takes great measures in preserving marriage and it is
glaring in our Constitution, the highest law of the land. The whole Article XV
of the Constitution is specifically formulated to achieve this purpose.

ARTICLE XV: THE FAMILY

Section 1. The State recognizes the Filipino family as the foundation of
the nation. Accordingly, it shall strengthen its solidarity and
actively promote its total development.
Section 2.

Marriage, as an inviolable social institution, is the

foundation of the family and shall be protected by the State.

Section 3. The State shall defend:

The right of spouses to found a family in accordance with

their religious convictions and the demands of responsible

parenthood;
The right of children to assistance, including proper care and
nutrition, and special protection from all forms of neglect,

12

abuse, cruelty, exploitation and other conditions prejudicial to

their development;
The right of the family to a family living wage and income;

and
The right of families or family associations to participate in
the planning and implementation of policies and programs
that affect them.

Section 4. The family has the duty to care for its elderly members but
the State may also do so through just programs of social
security.

A.

RESTRICTIONS
This article of the Family Code enumerates the restrictions for denying
a petition for legal separation.
Art. 56. The petition for legal separation shall be denied on any
of the following grounds:
(1) Where the aggrieved party has condoned the offense or act
complained of;

13

(2) Where the aggrieved party has consented to the commission

of the offense or act complained of;
(3) Where there is connivance between the parties in the
commission of the offense or act constituting the ground for
legal separation;
(4) Where both parties have given ground for legal separation;
(5)Where there is collusion between the parties to obtain decree
of legal separation; or
(6) Where the action is barred by prescription.

B.

PRESCRIPTION
Of course as a legal remedy, an action for legal separation has also a
prescriptive period. Prescription is normally alleged, however, in the
case of legal separation, it is otherwise. Hence, even the court itself
can take cognizance of prescription in an action for legal separation
because it involves public interest, and it is the policy of our law not to
grant such action if there exists any legal impediments or obstacles
thereto.
Art. 57. An action for legal separation shall be filed within
five years from the time of the occurrence of the cause.
14

C.

EXCLUSIVE GROUNDS
As already enumerated above, these excusive grounds are found in
Article 55 of the Family Code of the Philippines. No other grounds may
be invoked. It is the policy of the law to discourage legal separation.
The courts would immediately deny an action if it finds any irregularity.
Paramount care is given towards preservation of marriage.

D.

EARNEST EFFORT TOWARDS RECONCILIATION BY THE COURTS

This is eminent in the provision of the Family Code which states:
Art. 59. No legal separation may be decreed unless the Court has
taken steps toward the reconciliation of the spouses and is fully
satisfied, despite such efforts, that reconciliation is highly improbable.
Hence, the court will exhaust every possible solution towards the
reconciliation of the spouses before granting the decree of legal
separation.

E.

COLLUSION REPORT

15

There are instances where couples agree between themselves to file

an action of legal separation. Legislature has thought carefully of every
possible scheme that may circumvent the laws. Thus Article 60 of the
Family Code came about.
Art. 60. No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal
assigned to it to take steps to prevent collusion between the parties
and to take care that the evidence is not fabricated or suppressed.
In the case of Brown vs Yambao 102 Phil. 168, the husband sued his
wife for legal separation on the ground of adultery. His wife did not
respond nor present any contradicting statements or evidence against
the complaint. The court asked the fiscal to investigate whether there
was collusion and found out that the plaintiff is also guilty.
Plaintiff contends the action of the court.
The court rescinded the contention of the plaintiff, for the fiscal has
authority to bring light to any circumstances regarding the wifes
default. This action by the court is a mere preservation of the
importance of marriage which is the foundation of our families. It seeks
to prevent marriage ties becoming brittle and affords paramount
protection to it.

16

F.

REGLEMENTARY PERIOD
There will be a whole Chapter dedicated to this since it is the main
issue that is being tackled by this research paper.

V.

THE REGLEMENTARY PERIOD

Legal separation does not sever the marriage bond, its already a
given. One would ask why couples would go through all the trouble and
expenses since the very bond that enjoins them still subsists. It just entitles
the spouses to live separately. There are questions why is there a need for
this six months reglementary period since a decree of legal separation still
preserves the marriage bond. It would seem that it is a pessimistic way of
viewing it. If you begin to look at it the optimistic way around, you would
come to an answer which tells you that the very reason is also because that
the marriage bond is not severed, hence said cooling off period gives
couples time to rethink about the legal remedy being sought.

Now that we have understood the intricate components and forms of

marriage as well as the protection and paramount importance the state
17

affords it, we can now start to divulge ourselves in the taxing task of whether
it is beneficial for the spouses or not.

Once the court accepts to try a petition for legal separation, this means
that the petitioner has already complied with the necessary ingredients for
the courts to take cognizance. The action being filed is one of the exclusive
grounds laid down by Article 55, the action has not prescribed under Article
57, and that the six months reglementary period provided under Article 58
has elapsed (except in cases provided for by law, e.g. a case filed under RA
9262 known as The Anti-Violence Against Women and their Children wherein
Article 58 does not apply).

In many ways, a legal separation is the same as a divorce. Both include

final custody, visitation, child support, and if appropriate, alimony orders. All
the family assets and debts are permanently divided. (In both types of cases,
it is possible to get temporary orders about support and custody early in the
case, if you need them.) The major difference is that if you have a legal
separation, you are still married. The wife may not resume her former name.
Since it costs just as much, takes as long, and requires the same major
decisions, why would anyone want a legal separation?

18

Some couples choose legal separation because of religious beliefs or

moral values against divorce. Let us begin to dissect the pros and cons of the
cooling off period.
A.

PROS
The main purpose of Article 58 of the Family Code is to let the couples
cool off and allots time to reconcile. These two cases will give insights
on why it is important before the courts can begin to try petitions for
legal separation.

1.) Araneta v. Concepcion and Benitez Araneta, L-9667, July 31, 1956
Facts:
The main action was brought by the husband against his wife for legal
separation on the ground of adultery. The wife however filed an omnibus
petition to secure custody of their three minor children, a monthly support of
P5,000 for herself and said children, and the return of her passport. The
husband opposed the petition, denying the misconduct imputed to him and
alleging that the wife had abandoned the children. The respondent judge
resolved the omnibus petition granting custody of the children to the wife
and a monthly allowance of P2,300.00 for support for her and her children.
The main reason given by the judge, for refusing the husbands request that

19

evidence be allowed to be introduced on the issues, is the prohibition

contained in Article 103 of the Civil Code, which reads as follows:
ART. 103. An action for legal separation shall in no case be tried before six
months shall have elapsed since the filing of the petition.
Issue:
Whether or not the six month cooling-off period be followed
Ruling:
It is conceded that the period of six months fixed therein Article 103
(Civil Code) is evidently intended as a cooling off period to make possible a
reconciliation between the spouses. The recital of their grievances against
each other in court may only fan their already inflamed passions against one
another, and the lawmaker has imposed the period to give them opportunity
for dispassionate reflection. But this practical expedient, necessary to carry
out legislative policy, does not have the effect of overriding other provisions
such as the determination of the custody of the children and alimony and
support pendente lite according to the circumstances. (Article 105, Civil
Code.)

The law expressly enjoins that these should be determined by the

court according to the circumstances. If these are ignored or the courts close
their eyes to actual facts, rank injustice may be caused. Take the case at
20

bar, for instance. Why should the court ignore the claim of adultery by the
husband in the face of express allegations under oath to that effect,
supported by circumstantial evidence consisting of letter the authenticity of
which cannot be denied. And why assume that the children are in the
custody of the wife, and that the latter is living at the conjugal dwelling,
when it is precisely alleged in the petition and in the affidavits, that she has
abandoned the conjugal abode? Evidence of all these disputed allegations
should be allowed that the discretion of the court as to the custody and
alimony pendente lite may be lawfully exercised.

Thus the determination of the custody and alimony should be given

effect and force provided it does not go to the extent of violating the policy
of the cooling off period. That is, evidence not affecting the cause of the
separation, like the actual custody of the children, the means conducive to
their welfare and convenience during the pendency of the case, these should
be allowed that the court may determine which is best for their custody.

This case depicted the benefits of the cooling off period, the Supreme
Court stated that during the trial the recital of the grievances might set off
their ill-feeling towards each other. The cooling off period will try to
extinguish the outburst of hate between the spouses and let them clearly
decide the best option for themselves and their family.
21

2.) LUCY SOMOSA-RAMOS vs. THE HONORABLE CIPRIANO VAMENTA, JR. G.R.
No. L-34132 July 29, 1972

Facts:
On June 18, 1971, petitioner filed in the sala of respondent Judge against
respondent Clemente Ramos for legal separation, on concubinage on the
respondent's part and an attempt by him against her life being alleged. She
likewise sought the issuance of a writ of preliminary mandatory injunction for
the return to her of what she claimed to be her paraphernal and exclusive
property, then under the administration and management of respondent
Clemente Ramos. There was an opposition to the hearing of such a motion
based on Article 103 of the Civil Code.

Thereafter, petitioner received an

order of respondent Judge granting the motion of respondent Ramos to

suspend the hearing of the petition for a writ of mandatory preliminary
injunction. That is the order complained of in this petition for certiorari.
Issue:
Whether or not Article 103 of the Civil Code prohibiting the hearing of
an action for legal separation before the lapse of six months from the filing of
the petition, would likewise preclude the court from acting on a motion for

22

preliminary mandatory injunction applied for as an ancillary remedy to such a

suit.
Ruling:
After a careful consideration of the legal question presented, it is the
holding of this Court that Article 103 the Civil Code is not an absolute bar to
the hearing motion for preliminary injunction prior to the expiration of the sixmonth period.The court where the action is pending according to Article 103
is to remain passive. It must let the parties alone in the meanwhile. It is
precluded from hearing the suit. There is then some plausibility for the view
of the lower court that an ancillary motion such as one for preliminary
mandatory injunction is not to be acted on. If it were otherwise, there would
be a failure to abide by the literal language of such codal provision.
That the law, however, remains cognizant of the need in certain cases
for judicial power to assert itself are discernible from what is set forth in the
following article. It reads thus: "After the filing of the petition for legal
separation, the spouse shall be entitled to live separately from each other
and manage their respective property. The husband shall continue to manage
the conjugal partnership property but if the court deems it proper, it may
appoint another to manage said property, in which case the administrator
shall have the same rights and duties as a guardian and shall not be allowed
to dispose of the income or of the capital except in accordance with the
orders of the court."

23

There would appear to be then recognition that the question of

management of their respective property need not be left unresolved even
during such six-month period. An administrator may even be appointed for
the management of the property of the conjugal partnership. The absolute
limitation from which the court suffers under the preceding article is thereby
eased. The parties may in the meanwhile be heard. There is justification then
for the petitioner's insistence that her motion for preliminary mandatory
injunction should not be ignored by the lower court. There is all the more
reason for this response from respondent Judge, considering that the husband
whom she accused of concubinage and an attempt against her life would in
the meanwhile continue in the management of what she claimed to be her
paraphernal property, an assertion that was not specifically denied by him.

In sum, the reglementary period provided by Art. 58 of the Family Code

are:

Stability in upholding the law and importance of the family

Adherence to the provisions of the Constitution in giving paramount

protection to the family as an inviolable social institution

Compliance with the policy of the Constitution to protect and

strengthen the family as the basic autonomous social institution

Preserving marriage as a foundation of the family
Giving the spouses time to reconciliate thus a chance to preserve the
rights of their children in being in an atmosphere of a family as a
whole.
24

B.

CONS
In serious cases where reconciliation is improbable, the cooling off
period might just cause anxiety to those who are longing for the
benefits of legal separation. It is important to note that the cooling off
period can be dispensed if it involves violence against woman or the
child. R.A. 9262 does not acknowledge Article 58 of the Family Code of
the Philippines. RA 9262 is the Anti-Violence Against Women and Their
Children Act of 2004. It seeks to address the prevalence of violence
against women and children (VAWC), abuses on women and their
children by their partners like:

Husband or ex-husband
Live-in partner or ex-live in partner
Boyfriend/girlfriend or ex-boyfriend/ex-girlfriend
Dating partner or ex-dating partner

The Act classifies violence against women and children (VAWC) as a

public crime.
The law somehow acknowledges that not all the time there should be a
cooling off period between the spouses. This is to prevent further acts
of violence against a woman or her child. Also to safeguard the victim
from further harm, minimizing trauma and disruption in victims daily
life, and give her the opportunity and ability to regain control of her
life.
25

VI.

CONCLUSION

A mensa et thoro is a Latin phrase which means "from table and bed,"
often translated as "from bed and board," in which "board" is a word for
"table." Separation a mensa et thoro is essentially a separation that is
sanctioned by a court order, meaning that the spouses may legally live
apart, but they are still legally married. Since divorce is not recognized here
in the Philippines, the spouses seeking legal remedy are confined to 3
options, namely, Declaration of Nullity of their marriage, Annulment and
Legal Separation. In families who cannot afford to seek a judicial order, they
opt for the extralegal separation which is also known as separation in fact.
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.
When a couple faces a troubled relationship and want to part ways,
they should not think of separation at first. Try should resolve the conflicts
and undergo therapy and counseling sessions together. Couples need to
keep the relationship alive by spending quality time together. However, if
there is no hope left, they resort to legal remedies. It is one of the most
difficult decision they need to make and can change their lives completely.

26

An unhealthy relationship between the parents can have negative effects on

the child as well.
Legal separation is rarely sought vis-a-vis declaration of nullity of
marriage and annulment because it does not break the marriage bond.
However, in a different perspective, after getting a decree of legal
separation, couples still have a chance to revive the relationship that was
once full of promise and love. Article 65 of the Family Code insures that
chance.
This paper explains that the pros of the cooling off period outweigh the
cons of it, in as much as the state takes cognizance of protecting family ties.
It is well embodied in the highest law of the land that every law formulated
for the family and marriage must adhere to the guidelines it has laid down.
Any doubts should be resolved in favor of marriage.
It must be noted that the cooling off period is reserved to cases where
reconciliation is still possible and violence is not prevalent. The safety of the
aggrieved or the children should still be the first priority. It becomes difficult
to survive when the couple does not share a good relationship. The law
recognizes these instances and provides a blanket of protection thus
emitting the requirements of Article 58 of the Family Code.
Legal separation might be the last resort for most of the couples today,
but as a country of close family ties; the cooling off period that is attached to

27

it, is one that genuinely embraces and safeguards the Filipino concept of
family.

28