In accordance with law, if drug addiction, habitual alcoholism, lesbianism or homosexuality should occur

only during the marriage, they: Will constitute as grounds for legal separation (Art. 55, Family Code)

Sexual infidelity was only a ground for legal separation;

ii. If the wife goes (to) abroad to work as a nurse and refuses to come home after the expiration of her
three-year contract there.

If the wife refuses to come home for three (3) months from the expiration of her
contract, she is presumed to have abandoned the husband and he may file an action for
judicial separation of property. If the refusal continues for more than one year from the
expiration of her contract, the husband may file an action for legal separation under Article
55(10) of the FC on the ground of abandonment of petitioner by respondent without
justifiable cause for more than one year. The wife is deemed to have abandoned the husband
when she leaves the conjugal dwelling without any intention of returning (Art. 101, FC). The
intention not to return cannot be presumed during the three-year period of her contract.

iv. If the husband has a serious affair with his secretary and refuses to stop notwithstanding advice
from relatives and friends.

The wife may file an action for legal separation. The husband’s sexual infidelity is a
ground for legal separation (Art. 55, FC). She may also file an action for judicial separation of
propertyfor failure of her husband to comply with his marital duty of fidelity (Art. 135 (4), 101,
FC).

If the husband beats up his wife every time he comes home drunk. (2003 Bar)

v. The wife may file an action for legal separation on the ground of repeated physical
violence on her person (Art. 55 (1), FC). She may also file an action for judicial separation of
propertyfor failure of the husband to comply with his marital duty of mutual respect [Art. 135
(4), 101, FC]. She may also file an action for declaration of nullity of the marriage if the
husband’s behaviour constitute psychological incapacity existing at the time of the celebration
of marriage.

No, Baby cannot ask for annulment of her marriage or for legal separation because both these actions
had already prescribed.

While concealment of drug addition existing at the time of marriage constitutes fraud under Art. 46 of
the FC which makes the marriage voidable under Art. 45 of the FC, the action must, however, be
brought within 5 years from the discovery thereof under Art. 47(3), FC. Since the drug addiction of Bert
was discovered by Baby in June 1989, the action had already prescribed in June of 1994.
Although drug addiction is a ground for legal separation under Art. 55(5) and Art. 57 of the FC requires
that the action must be brought within 5 years from the occurrence of the cause. Since Bert had been a
drug addict from the time of the celebration of the marriage, the action for legal separation must have
been brought not later than 23 December 1993. Hence, Baby cannot, now, bring the action for legal
separation.

Legal Separation:

a. There should be no condonation orconsent to the drug addiction;

b. The action must be filed within five (5) years from the occurrence of the cause.

c. Drug addiction arises during the marriage and not at the time of marriage.

Q: Is there any law which allows the delivery to compulsory heirs of their presumptive legitimes
during the lifetime of their parents? If so, in what instances?

A: Yes, under Arts. 51 and 52 of the New Family Code, in case of legal separation, annulment of
marriage, declaration of nullity of marriage and the automatic termination of a subsequent marriage
by the reappearance of the absent spouse, the common or community property of the spouses shall
be dissolved and liquidated.

Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as
of the date of the final judgment of the trial court, shall be delivered in cash, property or sound
securities, unless the parties, by mutual agreement, judicially approved, had already provided for such
matters.

The guardian of their children, or the trustee of their property, may ask for the enforcement of the
judgment.

They delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate
successional rights of the children accruing upon the death of either or both of the parents; but the
value of the properties already received under the decree of annulment or absolute nullity shall be
considered as advances on their legitime.

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and the delivery of the children’s presumptive legitimes
shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall
not affect third persons.
Q: After they got married, Nikki discovered that Christian was having an affair with another woman. But
Nikki decided to give it a try and lived with him for two (2) years. After two (2) years, Nikki filed an action
for legal separation on the ground of Christian’s sexual infidelity. Will the action prosper? Explain. (2012
Br)

Nikki’s action will not prosper on account at condonation. Although the action for legal
separation has not yet prescribed, the prescriptive period being five years, the decision of Nikki
to live with Christian after discovering his affair amounts to condonation of such act. However, if
such affair is still continuing, Nikki's action would prosper because the action will surely be
within (5) years from the commission of the latest act of sexual infidelity. Every act or sexual
liaison is a ground for legal separation.

Q: Rosa and Ariel were married in the Catholic Church of Tarlac, Tarlac on January 5, 1988. In 1990, Ariel
went to Saudi Arabia to work. There, after being converted into Islam, Ariel married Mystica. Rosa
learned of the second marriage of Ariel on January 1, 1992 when Ariel returned to the Philippines with
Mystica. Rosa filed an action for legal separation on February 5, 1994.

Does Rosa have legal grounds to ask for legal separation?

a.)Yes, the abandonment of Rosa by Ariel for more than one (1) year is a ground for legal
separation unless upon returning to the Philippines, Rosa agrees to cohabit with Ariel which is allowed
under the Muslim Code. In this case, there is condonation.

b) Yes. The contracting of a subsequent bigamous marriage whether in the Philippines or abroad
is a ground for legal separation under Art. 55(7) of the Family Code. Whether the second marriage is
valid or not, Ariel having converted into Islam is immaterial. 2

Has the action prescribed? (1994 Bar)

No. Under Art. 57 of the Family Code, the aggrieved spouse must file the action within five (5)
years from the occurrence of the cause. The subsequent marriage of Ariel could not have occurred
earlier than 1990, the time he went to Saudi Arabia. Hence, Rosa has until 1995 to bring the action
under the Family Code.
Q: Saul, a married man, had an adulterous relation with Tessie. In one of the trysts, Saul's wife, Cecile,
caught them in flagrante. Armed with a gun, Cecile shot Saul in a fit of extreme jealousy, nearly killing
him. Four (4) years after the incident, Saul filed an action for legal separation against Cecile on the
ground that she attempted to kill him.

1) If you were Saul's counsel, how will you argue his case?

2) If you were the lawyer of Cecile, what will be your defense?

3) If you were the judge, how will you decide the case?(2006 Bar)

A:

1) As the counsel of Saul, I will argue that an attempt by the wife against the life of the husband is one of
the grounds enumerated by the Family Code for legal separation and there is no need for criminal
conviction for the ground to be invoked (Art. 55, par. 9, FC).

2) If I were the lawyer of Cecile, I will interpose the defense that the attempt on his life was without
criminal intent but was impelled solely by passion and obfuscation. This is the reason why under the
Revised Penal Code, even killing him when caught in the act would be justified. To be a ground for legal
separation, the attempt must be intentional and wrongful.

3) As judge, I will deny the petition. Petition for legal separation may be filed only by the aggrieved
spouse. Since Saul was unfaithful and was in fact caught in flagrante by his wife, he is not an “aggrieved”
spouse entitled to the relief. He who comes to court must come with clean hands. And even assuming
that the attempt on his life by the wife is a ground for legal separation, he is still not entitled to the relief
because of his infidelity. The law does not allow legal separation if both parties have given ground for
legal separation.

Q: True or False

If a man commits several acts of sexual infidelity, particularly in 2002, 2003, 2004, 2005, the prescriptive
period to file for legal separation runs from 2002. (2007 BAR)

A: FALSE. The five-year prescriptive period for filing legal separation runs from the occurrence of sexual
infidelity committed in 2002 runs from 2002, for the sexual infidelity committed in 2003, the
prescriptive period runs from 2003 and so on. The action for legal separation for the last act of sexual
infidelity in 2005 will prescribe in 2010.