LEGAL SEPARATION Grounds FC Article 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 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 of respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; 8. Sexual infidelity or perversion; 9. Attempt of the respondent on the life of the petitioner; 10. Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term child shall include a child by nature or by adoption. Violence- must be of a serious degree but does not have to amount to an attempt against the life of the defendant The violence must be repeated, to the extent that common life with defendant becomes extremely difficult for the plaintiff. Physical violence or moral pressure to compel the plaintiff to change religious or political affiliation need not be repeated. There must be some element of coercion present, whether physical or moral. The guilt for the corruption or inducement to prostitution must be on only one spouse. The crime for which a spouse may have been convicted may have no bearing at all on the relationship of the husband and wife. If drug addiction, habitual alcoholism, lesbianism or homosexuality existed at the time of marriage but were unknown to the other party, they would constitute a ground for annulment of marriage as fraud. If they come to exist after the celebration of the marriage, they become grounds for legal separation. Every subsequent marriage, where there is a subsisting prior marriage, should give the other spouse the right to ask for legal separation. This is so because the spouse who has remarried has cohabited with another person. Under the Family Code, every act of sexual infidelity by either husband or wife is a ground for legal separation. Sexual perversion as a ground for legal separation includes all unusual or abnormal sexual practices which may be offensive to the feelings or sense of decency of either husband or wife. There must also be an element of coercion exercised by the defendant to make the plaintiff submit to the act. There is abandonment when one spouse leaves the other without intent to return. Attempt on the life must imply that there is intent to kill Under Article 101 of the Family Code, the spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts, shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

CC Article 97: A petition for legal separation may be filed: 1. For adultery on the part of the wife and for concubinage on the part of the husband as defined in the Penal Code; or

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2.

An attempt by one spouse against the life of the other.

Adultery- The act of a wife having sexual intercourse with any other man not her husband will constitute adultery. Concubinage- The act of the husband having sexual intercourse with his wife shall constitute concubinage if: 1. He maintains a mistress in the conjugal dwelling; 2. there is sexual intercourse with the other woman under scandalous circumstances; 3. the husband cohabits with another woman other than his wife in any other place. Cohabit- to dwell or live together in the same house as husband and wife. Legal Separation vs. Separation of Property In legal separation, there is a suspension of the common marital life, both as to person and property. In separation of property, only the property relation is affected and the spouses may continue living together. Separation of property can be effected by agreement of the spouses, subject to judicial approval; but a decree of legal separation cannot be rendered upon agreement of the parties. Legal Separation vs. Separation of Spouses Legal separation can be effected only by decree of the court; but the spouses may be separated in fact without any judgment of the court. People vs. Zapata and Bondoc Facts: Petitioner husband Andres Bondoc filed a complaint of adultery against his wife, Guadalupe Zapata and her paramour, Dalmacio Bondoc. The two respondents cohabited and had repeated sexual intercourse from 1946 to March 1947. The defendant wife entered a plea of guilty and was sentenced to suffer four months in prison. Respondent Dalmacio Bondoc on the other hand, claimed that he did not know that Guadalupe Zapata was married. On September 1948, petitioner once again filed a complaint of adultery for acts committed from March 1947 to September 1948. Defendant then filed a motion to quash on the ground that they will be twice put in jeopardy. The motion was granted by the lower court on the ground that adulterous acts must be considered as a continuing offense. Held: The court held that adultery as a crime of result and not of tendency, is consummated at the moment of carnal union. Continuous crimes exist if there is a plurality of acts performed separately during a period of rime, unity of penal provisions violated and unity of criminal intent or purpose. In short, continuous crimes are aimed at committing a single offense. In adultery, each instance of sexual intercourse is a separate crime. Also, the court held that there is no legal provision which bars the filing of as many complaints for adultery as there were adulterous acts committed. Munoz vs. Del Barrio Facts: Felicidad Munoz and Jose del Barrio quarreled frequently and on those occasions, petitioner complained that the husband maltreated her. In 1947, they separated but on December 1950 and September 1951, the husband once again maltreated petitioner, prompting her to institute an action for legal separation on the ground of attempt to life. Petitioner requested that she be given custody of her children, that whatever will remain of the conjugal property be divided, and the conjugal partnership be dissolved. Held: The Supreme Court affirmed the decision of the lower court. It held that the alleged maltreatment cannot constitute an attempt to life because such has to be characterized by intent to kill which was not sufficiently proven especially since the respondent only used his bare hands. Intent to kill, the court said, must be established with clear and convincing evidence. Gandionco vs. Penaranda Facts: Respondent judge Hon. Senen C. Penaranda ordered petitioner to pay for the support of private respondent Teresita Gandionco and his child. Private respondent filed a complaint for legal separation against petitioner on the ground of concubinage. Private respondent likewise requested for support and payment of damages. Petitioner Froilan Gandionco claims that the civil action for legal separation and the application for support should be suspended because of the pending criminal case for concubinage filed against him. His contention was based on Article 111 Section 3 of the 1985 Rules on Criminal Procedure which states that a pending civil action instituted for civil liabilities should be suspended until the criminal action arising from the same offense is over. Held: The court held that a civil action for legal separation may proceed ahead of or simultaneously with a criminal action for concubinage because the said civil action is not one to enforce civil liability but rather to obtain the right to live separately. Petitioners argument that conviction for concubinage must be secured before an action on legal separation can prosper lacks

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merit because unlike in criminal procedures, proof of concubinage in a civil procedure is based on preponderance of evidence and not proof beyond reasonable doubt. US vs. McMann Facts: Defendant Robert McMann and one McKay were employed at the Quartermasters Department of the Army. While at the place of a certain Moro, Amay Pindolonan asking for matches to light a cigarette, McMann suddenly fired at McKay. McKay was struck in the back of the head and killed instantly. Amay Pindolonan tried to run but McMann also shot him. Defendant claimed that he had no intention to shoot McKay as they were good friends and that the shooting was merely an accident. The defendant also claimed that he was drunk at the time of the incident. Held: To convict a man of the offense being a common drunkard it is necessary to show that he is a habitual drunkard to the point that he has a fixed habit of drunkenness. Lapus Sy vs. Sy Uy Facts:A case for legal separation was filed by Carmel Lapuz Sy against Eufemio Sy Uy on the ground of abandonment. She prayed for the issuance of a decree of legal separation and that her partner be deprived of their conjugal partnership profits. Petitioner also claimed that respondent was cohabiting with a certain Go Hiok. Respondent then filed a counter-dlaim for the declaration of nullity ab initio of his marriage with petitioner on the ground that he had a subsisting marriage with Go Hiok. During the course of the trial, petitioner died and her father, Macario Lapuz, moved to substitute. Eufemio moved to dismiss the substitution because the death of the petitioner should, as he alleged, abate the action for legal separation. Held: The death of one of the parties to the action abates the action itself because action for legal separation is purely personal hence, when one of the parties is dead, there is no longer a need for the decree. Conjugal property are likewise not assignable or transmissible therefore, it doesn not warrant a continuation of the action through substitution. Dela Cruz vs. Dela Cruz Facts: Estrella dela Cruz filed a complaint against her husband alleging that the latter has abandoned their family and has not slept or visited the conjugal dwelling since 1955; that defendant was mismanaging their conjugal partnership properties and as such has abused his powers of administration and that defendant had a concubine named Nenita Hernandez. Petitioner then asked for the separation of their property, a monthly support of P2,500 during the pendency of the action and payment of P20,000 in attorneys fees. Defendant contended that he did not abandon his family and has not failed to give them a monthly allowance of around P1,500. He stated that he is merely separated from his wife because he cannot concentrate on their business but he never failed to visit his family. Petitioner allegedly played mahjong often while respondent consistently applied his industry so that their business will grow. Held: The court held that abandonment must be real abandonment and not mere separation. It must not only be physical estrangement. Abandon in ordinary sense means to forsake completely with intent never again to resume or claim ones rights or interests. There must therefore be absolute cessation of marital relations, duties and rights with the intention of perpetual separation. Defenses FC Article 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; 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 the decree of legal separation; or 6. Where the action is barred by prescription. Condonation is the forgiveness of a marital offense constituting a ground for legal separation, and bars the right to legal separation. It may be expressed, in the sense that it is in writing or implied as inferred from the action of the injured party. Where a party has clear and convincing knowledge of the offense and then deliberately and willfully cohabits or has sexual intercourse with the offender, he or she thereby impliedly pardoned the offenders act. Consent is agreement or conformity in advance of the commission of the act which would be a ground for legal separation.

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Connivance implies agreement, express or implied, by both spouses. A husband who actively connives in the adultery of his wife by procuring her to be lured into the commission of the act will very generally be presumed to have consented to the adultery and will be denied legal separation on that ground. A husband must not actively participate in preparations for the suspected misconduct by providing opportunity for the wrongdoing. Collusion is the agreement between husband and wife for one of them to commit or to appear to commit or presented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain legal separation.

People vs. Sensano and Ramos Facts: After the birth of the first child of complainant Mariano Ventura and respondent Ursula Sensano, complainant left for Cagayan de Oro. Complainant did not write, call or send anything in form of support for three years. Respondent then cohabited with Marcelo Ramos with the belief that her husband will not return again. Complainant returned and filed a complaint of adultery against respondents. The court held in favor of the plaintiff but opined that the plaintiff treated his family with cruelty in abandoning them. After sentence, accused wife left her paramour and begged for the forgiveness of plaintiff but she was turned away. She then went back to Marcelo Ramos. Plaintiff then left for Hawaii and upon his return after seven years, he once again filed a charge of adultery. Held: The court held that under Article 34 of the RPC, the offended party cannot file a complaint of adultery if he consented to it. The court was of the belief that complainants action of turning away the defendant constituted a consent and as such he estopped from filing a case. -Constructive Abandonment- The injured party leaves the wife or the spouse refuses the re-entry of the offending spouse. De Ocampo vs. Florenciano Facts: Petitioner Jose de Ocampo filed a complaint of adultery against his wife but was denied by the Court of First Instance. Through several testimonies, it was found that in March 1951, defendant maintained illicit relations with one Jose Arcalas. After plaintiff found out, defendant was sent to Manila to study wherein she had several illicit relations with other men. On June 1955, plaintiff found his wife in the act of sexual intercourse with one Nelson Orzame. Plaintiff then and there told his wife of his intention of filing for legal separation. The Court of Appeals held that the time for filing a charge of adultery on the first case had prescribed. Also, on the second case, CA held that they cannot render a decree of separation on the ground of confession of judgment. Held: The court held that the confession of judgment--which happens when a defendant confesses in court the right of plaintiff to his demand, did not occur because such confession happened outside of court. Had there been a confession of judgment, the decree should still be granted since there was a preponderance of evidence as provided by the plaintiff. If the court will not allow separation despite of the evidence, any defendant who opposes separation will merely confess in court. Sargent vs. Sargent Facts: Petitioner Donald Sargent charged his wife, respondent Frances L. Sargent with adultery alleging that defendant wife had illicit relations with Charles Simmons, a black man and the couples driver. Petitioner alleged that defendant wife contracte d gonorrhea from the illicit relations. Petitioner then hired detectives to prove the said illicit relations, and said detectives testified along with other servants, all of whom were employed by petitioner. The detectives in one instance shut the door of the room of respondent wife while respondent Charles Simmons was inside to make it appear as though they were having illicit relations. Held: The court held in favor of the defendant. The detectives surveilled Mrs. Sargent for over seven weeks but no solid evidence of the alleged adultery was procured. Mr. Sargent also appeared to have connived with the detectives to show that his wife was indeed having sexual relations. Where the husband employs detectives to get evidence of his wifes adultery, but the adultery is brought about by the detective himself, legal separation can be denied on the ground of connivance. Brown vs. Yambao Facts: William H. Brown filed an action to obtain legal separation against his wife, Juanita Yambao. He found out that his wife has adulterous relations with one Carlos Feld at the time when petitioner was interred by the Japanese invaders. He discovered the said relation when in 1945, his wife begot a child. A document was executed for the liquidation of their conjugal partnership property and as such, complainant wants confirmation of liquidation, custody of children and the disqualification of defendant from succession. In the cross examination of petitioner it was found that he was also cohabiting with another woman and had a child with that woman.

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Held: The court held that the misconduct of petitioner barred him from obtaining legal separation and in this case, the misconduct and failure of the wife to institute action against petitioners misconduct constituted circumstantial evidence of collusion. Willan vs. Willan Facts: Husband appeals the decision by court to deny his petition for the dissolution of his marriage on the ground that he condoned the cruelty of his wife. Petitioner alleged that his wife repeatedly assaulted him, was habitually offensive and frequently demanded to have sexual intercourse with him. Respondent allegedly resorted to violence and pestering, forcing complainant to agree to sexual intercourse. Solicitors have allegedly written the wife regarding the matter but to no avail. The night before leaving the conjugal dwelling, petitioner and respondent once again had sexual intercourse. Held: The court held in favor of the defendant as they found it impossible that a man may have sexual relations and not condone the said relations. Unwillingness, the court said, is not the same as involuntariness. Bugayong vs. Ginez Facts: After their marriage, petitioner Benjamin Bugayong and Defendant Leonila Ginez agreed that defendant would stay with petitioners sisters while petitioner worked in the United States as a serviceman. For some time, defendant lived with petitioners sisters but she eventually left to live with her mother and then moved to Dagupan to study. Petitioner received letters from his sister-in-law that defendant was having adulterous relations and petitioner alleged that defendant herself wrote him that she was kissed by another man. When petitioner returned, they lived together for two nights and one day. On the second day, when petitioner asked the defendant if there was any truth to the allegations of adultery, defendant did not answer but instead, left. The petition was dismissed by the lower court on the ground that petitioner had condoned the said illicit relations of his wife. Held: The petitioner, having slept with the defendant for two nights, has condoned the adulterous relations. Any cohabitation with the guilty party, after the commission of the offense, and with knowledge or belief is considered conclusive evidence of condonation. Matubis vs. Praxedes Facts: Soccoro Matubis filed a complaint for legal separation alleging that Zoilo Praxedes had abandoned her and was guilty of concubinage. According to her testimony, barely a year after their marriage, plaintiff and defendant agreed to live separately after failing to agree on where they should live as husband and wife. They entered into an agreement which stipulated the conditions and provisions for their de facto separation. In 1955, defendant began cohabiting with another woman and had another child by her. Held: The time for instituting action has prescribed. The stipulations in the agreement which stated that both spouses relinquished their rights as husband and wife, and was free to get any mate and live with him or her as husband and wife, constituted consent and condonation. When to File/ Try Actions FC Article 57: An action for legal separation shall be filed within five years from the time of the occurrence of the cause. FC Article 58: An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. - If the ground for legal separation is violence against women, there should be no effort to compromise. FC Article 59: No legal separation may be decreed unless the Court has taken steps towards the reconciliation of the spouses and is fully satisfied, despite such effort, that reconciliation is highly improbable. FC Article 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 take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. Contreras vs. Macaraig Facts: Elena Contreras appealed the decision of the Juvenile and Domestic Relations court of Manila which dismissed her complaint of adultery against Cesar J. Macaraig on the ground that the time for filing an action has prescribed. In 1961, defendant met Lily Ann Alacala and had started to come home late and be away often. In September 1962, Avelino Lubos, the family driver, told Elena that her husband was living with Alcala. When defendant came home in October, plaintiff did not verify the report so that defendant will not get angry. In April 1963, plaintiff once again heard rumors of the alleged misconduct of her husband. It was only upon hearing reports that Lily Ann Alcala had given birth did plaintiff sent Mrs. Felicisima Antioquo to

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investigate. The latter confirmed on October 1963 that a child had been born by Alcala, bearing the surname of defendant. Plaintiff, through her father and sister-in-law, tried to convince the defendant to come back but defendant told her that he can no longer leave Lily Ann. The lower court held that the word cognizant does not connote the date when proof was sufficient because the time indicated by the code would have been rendered meaningless as all one would need to do is fix the date. Held: The court held that plaintiff had reason not to file an action because she had hoped that defendant would return. The only time that defendant therefore that plaintiff became cognizant of the alleged infidelity of the defendant was when the husband stated that he was living with, and no longer be leaving, Lily Ann Alcala. Somosa Ramos vs. Vamenta Jr. and Clemente Ramos Facts: Petitioner Lucy Somosa Ramos filed a civil case for legal separation against Clemente Ramos on the ground of concubinage and attempt to life. She also sought the issuance of a writ of preliminary mandatory injunction for the return of her paraphernal and exclusive property then in the administration of the defendant. An opposition to the hearing of the motion was filed based on Article 103 of the Civil Code which states that an action for legal separation shall not be tried before six months had elapsed since the filing of the petition. Respondent judge held in favor of the defendant who claimed that any prospect for reconciliation will be lost if the motion was tried. Held: The court held that Art. 103 of the Civil Code is not an absolute bar to the hearing of a motion for preliminary injunction prior to the expiration of the six-month period. Art. 104 states that the court may appoint another person to manage the property should it deem it proper. The six-month bar should not have the effect of overriding the provisions such as determination of the custody of the children, alimony and support pendent lite. Effects of Filing a Petition FC Article 61: After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of guardian under the Rules of Court. FC Article 62: During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouse and the custody and support of the common children. The spouses can live separately from each other; The administration of the common property, whether in absolute community or conjugal partnership gains, shall be given by the court to either of the spouses or to a third person, as is best for the interest of the community; The court shall provide for the support between the spouses and the custody and support of the common children; When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be necessary unless such spouse voluntarily gives consent.

Alimony pendent elite- During the pendency of the suit for legal separation, it is the duty of the court to grant alimony to the wife and to make provisions for the support of the children not in the possession of the father. An action for legal separation is based on the assumption that there is a valid, subsisting marriage thus, if defendant contends that the marriage is not valid, alimony pendente elite shal be denied. Custody of the children may be determined by: 1. Agreement of the spouses which shall not be disturbed unless prejudicial to the children; 2. Court order which shall be based on the sound discretion of the judge, taking into account the welfare of the children. Dela Vina vs. Villa Real Facts: Respondent Narcisa Geopano filed a complaint against Diego delaVina alleging that he committed acts of adultery with one Ana Calog. Respondent likewise alleged that she had been rejected from their conjugal home and had no means of support. She requested for the decree of divorce, partition of conjugal property and alimony. After filing the complaint, respondent also found that petitioner was trying to alienate the conjugal property to the prejudice of the plaintiff. Thus, plaintiff asked that a preliminary injunction be issued against defendant. The lower court ruled in favor of plaintiff-respondent as such, herein petitioner contended that the court had no jurisdiction over the case because the domicile residence of the wife was not Iloilo and that as administrator of the conjugal property, he had a right to alienate his wife.

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Held: The court held that a wife may acquire another and separate domicile from that of her husband when the theoretical unity of husband and wife is dissolved or if husband has given cause for divorce or where there is separation of the parties by agreement or a permanent separation due to desertion or cruel treatment or where there has been a forfeiture of the benefit of domicile. Also, petitioners claim that he had a right to alienate responded lacked merit. Court held that when the harmoniou s relationship between husband and wife ceases, it is but right that the husbands powers of administration be curtailed in light of the pendency of the action for separation. Reyes vs. Ines-Luciano and Reyes Facts: Celia Ilustre Reyes filed a complaint for legals separation against her husband, Manuel J. C. Reyes on the ground that the latter had attempted to kill the plaintiff. Plaintiff and herein respondent asked for support pendent elite for her and her three children which was granted by the lower court and respondent judge awarded plaintiff with P5,000 in monthly support. Petitioner opposed the ruling of the lower court on the ground that his wife committed adultery. Held: The court held that while adultery is a good defense, it should be established by competent evidence. In the case at hand, petitioner did not present evidence to that effect. Also, the plaintiff-respondent was not asking for mere support but for her share of the conjugal property or alimony. Complainant has also proven the grounds of legal separation through competent evidence. Property relations of unmarried couples is that of co-ownership based on actual contribution and not the presumed half and half as it is in conjugal partnership. Pendente Lite: Pending Litigation Effects of Decree Banez vs. Banez Facts: On Sept. 23, 1996, Aida P. Banez was legally separated from Gabriel Banez on the ground of the latters sexual infidelity. Included in the decision is the dissolution of their conjugal property relations, division of their net conjugal assets, forfeiture of respondents share in favor of the common children and the urgent ex parte motion to modify the decision and oblige petitioner to pay as attorneys fees 5% of the total value of respondents ideal share. On the motion for execution, respondent Gabriel opposed. Trial court denied Aidas motion for moral and exemplary damages and litigation fees but granted the motion for execution. Petitioner was thereby ordered to post a P1.5 M bond which she did. The Court of Appeals set aside the writ for execution. Held: The court denied the motion of execution n the ground that execution pending appeal is allowed when superior circumstances demanding urgency outweigh the damages that may result from the issuance of the writ. Otherwise, the writ will be a tool for oppression and inequity. Such urgency is not manifested by the case at bar. Legal separation is not one where multiple appeals are allowed. The issues involved in the case are of the same marital relationship between the parties. In this case, dissolution is a mere incident of legal separation. As such, no separate action may be taken. FC Article 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. The obligation of mutual fidelity remains. The only sanction in case of adultery or concubinage shall be penal. After the decree, the obligation of mutual support between the spouses ceases; however the court may order that the guilty spouse shall give support to the innocent spouse. A parent shall still have a right to access his child under court regulation, unless he forfeited the privilege or if it would injuriously affect the child. The guilty spouse shall not be entitled to the legitime. A decree of separation which does not include an order of division of properties is not an incomplete judgment. The rules on dissolution and liquidation of property regime shall be applied when the decree of legal separation becomes final.

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FC Article 64: After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation has become final. The donations subsist if action is not taken before the death of the spouse.

PD 612 (Insurance Code) Sec. 11: The insured shall have the right to change the beneficiary he designated in the policy, unless he has expressly waived this right in said policy. Dissolution and Liquidation of ACP or CPG La Rue vs. La Rue Facts: Upon the divorce of Walter F. La Rue from Betty J. La Rue in March 1980, the trial court held that the wife, having been a homemaker, was not entitled to her claim to the equitable distribution of marital assets. Petitioner Betty La Rue worked in the early part of their marriage until Mr. La Rue, herein respondent, convinced her to stop working and become a homemaker. The couple had two children. The divorce only awarded Mrs. La Rue with alimony and allowance for healthcare. Their home which was once under the name of Mrs. La Rue was transferred under Mr. La Rue prior to the decree of divorce. Held: Where the spouse has foregone career opportunities at the behest of the primary wage earning spouse, and throughout the long marriage has remained in the home to rear children and provide suitable environment for the family, the homemaker spouse shall have an equitable interest in real property acquired by the wage earning spouse during their marriage. Doctrine of Equitable Distribution - Permits a spouse who has made material economic contributions toward the acquisition of property which is titled in the name or under the control of the other spouse, to claim an equitable interest in such property in proceeding to seek a divorce. - The concept of homemaker services is not to be measured by some mechanical formula but instead rests on showing that the homemaker has contributed to the economic well-being of the family unit. Custody 1. Determining the Best Interest of the Child: Gender and Tender Years Presumption: When dealing with children of tender years, the natural mother is presumed in absence of evidence to the contrary, to be the proper person vested with custody of such children.

PD 603 Article XVII: In case of separation of his parents, no child under five years of age shall be separated from his mother unless the court finds compelling reasons to do so. Ex Parte Devine Facts: Petitioner Christopher P. Devine and respondent Alice Beth Clark Devine were separated on March 29, 1979. The couple had two children considered to be of tender years based on the Tender Years Presumption. Both Mrs. Devine and Mr. Devine were found to be fit to care for the children but on account of the Tender Years Presumption, custody was awarded to respondent. Petitioner contended that the Tender Years Presumption deprived him of the constitutionally mandated right of equal protection of the law. Held: Petition is granted. Case remanded to the lower court. In common law, the Tender Years Presumption was in favor of the husband who was the master of the family. While Alabama recognize the factual presumption that mothers are inherently suitable to care for and nurture young children, the presumption is weakening in other states. With this presumption, it becomes the fathers burden to prove that the mother is unfit to care for their common child. The constitutionality of this presumption, the court held, may not be lawfully mandated solely on the basis of sex.

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Cervantes vs. Fajardo Fact: This is a petition for a writ of habeas corpus of minor Angeline Anne C. Cervantes filed by Nelson L. Cervantes and Zenaida C. Cervantes against Gina Carreon Fajardo and Conrado Fajardo. After the birth of Angeline Anne, respondents offered the child for adoption to Zenaida, Ginas sister, and Nelson, her brother -in-law. The petitioners have taken care of the child since she was two weeks old and an Affidavit of Consent to Adoption was executed. On Aug. 20, 1987, the petition for adoption was granted and the childs surname was changed to Fajardo. She was, from that decision, freed from parental authority and legal obligation of her natural parents. On April 1987, petitioners received a letter from respondents demanding P150,000 for the return of their adopted child who was taken by respondent Gina Carreon. Held: The court reaffirmed the decision of the lower court. The provision that no mother shall be separated from a child under five years of age will not apply where the court finds compelling reasons to rule otherwise. Because the adoptive parents are legally married and the respondents relationship with her husband is that of common law and that respondent has given birth to a chi ld by another man, the court held that it will be in the childs best interest to stay with her adoptive parents. Espiritu v. Court of Appeals Facts: Petitioner Reynaldo Espiritu and respondent Teresita Masauding met in 1976. In 1977, respondent left for Los Angeles, California to work as a nurse. In 1984, National Steel Corporation sent petitioner to Pittsburgh Pennsylvania as a liason officer and from then on, petitioner and respondent maintained a common law relationship. On August 16, 1986, their first child was born. The couple was married in October 1987 in the Philippines. After that, they had another child who was born in 1988. While in the US, respondent left her children with Petitioner to continue working in California while the latter was in Pittsburgh. Petitioner returned to the Philippines but upon being sent to Pittsburgh decided to leave his children with his sister Guillerma Layug. Teresita claimed that she did not immediately follow her children because she was afraid that Reynaldo has filed a case of bigamy against her. In December 1992, respondent filed a writ for habeas corpus. The trial court dismissed the petition but the decision was reversed by the CA. Held: The presumption that children under seven years of age can best be taken care of by the mother is rebuttable. The task of appointing custody cannot be solely based on the child alone but several other considerations. The seven year age is not based on the date petition was filed but the date decision is rendered. As such, the preference of the children should be taken into consideration in deciding the matter of their custody. Celis vs. Cafuir Facts: Respondents Soledad Cafuir and her husband Jose Simeon appealed the decision of the lower court granting the writ of habeas corpus to Ileana Celis and ordering the delivery of the child to petitioner. Petitioner, after giving birth to Joel (John) Cafuir turned over custody to Soledad, fearing the extreme displeasure and anger of her father. Soledad provided for all the needs and comforts of the child, including a nurse hired to care for the child. After marrying Agustin C. Rivera, petitioner filed the suit for habeas corpus. Respondents argued that petitioner executed documents to the effect that she has renounced the custody of her children. The first stated that the child was entrusted to respondents while the second stated that Soledad is the real guardian of the child and no one may adopt the child except for Soledad. Held: The document cannot be taken to imply that petitioner has renounced the custody of her child. The child was, as the first document stated, merely entrusted and such arrangement was not permanent. Having been emancipated from h er father, Ileana was in the position to care for her child and as such, has a right to do so. FC Article 210: Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. 2. Parental unfitness:

Feldman vs. Feldman Facts: In a habeas corpus proceeding, the lower court transferred from the mother to the unmarried father the custody of their two infant children who previously had continuously resided with the mother. The couple was divorced in July 1970 on the ground of cruel and inhuman treatment on the part of the husband who was involved in extramarital relations prior to the dissolution of their marriage. The wife on the other hand, had a relationship to another man subsequent to the decree of divorce. Petitioner Philip Feldman alleged that he observed a copy of Screw Magazine (which possesses dubious redeeming social values) and that he found letters (some with explicit photographs attached) which were responses to an advertisement for another couples or groups for fun and games, in the house of respondent Mady Feldman. Respondent wife alleged that the advertisement was done for fun and that the evidence showed that her private sex life in no way affected the children and that the children were provided for.

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Held: Court held that amorality, immorality, sexual deviation and aberrant sexual practices do not, on its face, constitute unfitness for custody. The trial courts ruling that parents who participate in a culture of free sex were unfit to care for children was a dangerous conclusion. Also, the right of women to engage in private sexual activities which do not affect her relationship with her children is protected by her right to privacy. If courts recognized the rights of unmarried men to engage in extramarital relations, there is no reason to impose stricter standards on women. The evidence of the obscene materials was likewise out of reach of the children. As such, they are not, on its face, detrimental to the childrens welfare. Santos Sr. vs. Court of Appeals Facts: Court of appeals granted custody of 6 year old Leouel Santos Jr., son f petitioner Leouel Santos Sr. and Julia BediaSantos to the latters parents, Leopoldo and Ofelia Bedia. Leouel Santos Sr. is an army lieutenant while Julia Be dia was a nurse working in the US. Since release from the hospital, Leouel Jr. had been in the custody of respondents. Julia has reportedly sent financial support while Leouel Santos had done no such thing. On Sept. 2, 1990, Leouel took his son from respondents prompting respondents to file a Petition for Care, Custody and Control of Minor ward Leouel Santos Jr. Petitioner argued that private respondents have failed to show that petitioner was an unfit and unsuitable father and as such, Article 214 of the Family Code cannot be applied. Private respondents contended that they can provide a comfortable life to the child and that petitioner, being a soldier, will not be able to care for the child. Held: Custody granted to petitioner. When a parent entrusts the child to another, what is given is merely temporary custody and not a perpetual renunciation of parental authority. A waiver of parental authority can only be executed in cases of adoption, guardianship and surrender to childrens home or an orphan institution. Petitioners previous inattention cannot be immediately construed as abandonment. His effort to keep custody of the child is a sign that he is willing to rectify his mistakes. Role of the Childs Preference

FC Article 49: The court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. FC Article 213: In case of separation of the parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent is unfit. No child shall be separated from the mother unless the court finds compelling reasons to order otherwise. David v. CA Facts: Petitioner Daisie T. David worked as secretary of private respondent Ramon R. Villar who was then married and had a family. They had intimate relations which produced three children, Christopher, Christine and Cathy. Private respondents wife was aware of the existence of the illegitimate children. Christopher was taken by respondent on a trip to Boracay. Upon their return, respondent refused to return the child prompting petitioner to file for a write of habeas corpus. The trial court granted the petition but the Court of Appeals reversed the decision on the ground that the trial court had no jurisdiction over the case as the children were borne out of adulterous relations. Temporary custody was awarded to respondent until such time that the issue on custody and support was determined in a proper case. Petitioner contended that the writ of habeas corpus applied to all cases of illegal confinement or detention or by which the rightful custody og any person is withheld. Held: Article 213 of the FC states that custody of a child under six will be given to the mother unless the court deems it proper to rule otherwise. Absent any showing that petitioner is unfit (although admittedly, she is not as well-off as respondent), custody shall be given to her. As the child is over the presumed tender years, custody must still remain with the mother as the child has categorically expressed preference to live with his mother. Pizarro vs. Vasquez Facts: This suit for obtaining support from defendant was instituted by Maria Pizarro and her minor children, Gloria, Julita and Lorenzo. Plaintiff and defendant separated on the ground that the latter committed acts of infidelity and cruelty. Defendant denied the claim and alleged that there is no contract of separation and that Maria Pizarro committed acts of adultery. The evidence of said adulterous relations was the birth of Lorenzo 11 months after the couple separated. Petitioner explained that they had sexual intercourse sometime in November 1933 during the town fiesta in the belief that defendant had changed. Held: Claims of plaintiff that defendant had kept a mistress and had maltreated her were not contradicted. Also, absent any evidence that plaintiff indeed committed adultery and considering the prima facie presumption of innocence, plaintiff should be given support by the defendant. Laxamana vs. Laxamana

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Facts: Petitioner Reymond Laxamana was a graduate of Bachelor of Laws while respondent Ma. Lourdes Laxamana held a degree in Banking and Finance. Upon marriage, respondent quit her job and became a full time housewife while petitioner managed buy and sell, fishpond and restaurant businesses. The couple had three children. In October 1991, petitioner was confined in Estrellas Home Care Clinic for being a drug dependent. He was again confined in 1996 for rehab. In 1997, petitioner was declared drug free but respondent alleged otherwise stating that petitioner has become irritable since his return and had even maltreated her at one point. Respondent abandoned petitioner in June 1999 taking the children with her. Petitioner filed a writ for habeas corpus for visitation rights which the court granted. The parties were ordered to undergo psychological evaluation which they passed except for the psychologists opinion that petitioner, in his belief, was not completely drug free. Held: Case was remanded. It is the duty of the court to hold a trial notwithstanding the agreement of the parties to submit the case for resolution on the basis of a psychiatric report. While petitioner had a history of drug dependence, records were inadequate to show his moral, financial and social well-being. There is therefore no proof that he is unfit to care for his children. The court also failed to consider the preference the choice of the children who were then 14 and 15 years old. Presumption of Primary Care Taker

Garska vs. McCoy Facts: Appelant Gwendolyn McCoy was pregnant with her first child, Jonathan Conway, at 15 years old. During pregnancy, Michael Garska, herein petitioner, did not give any support. When the child was born, petitioner sent food and diapers. The baby developed a chronic respiratory infection and to be able to use the United Mine Workers m edical insurance of her grandfather, appellant agreed to the adoption of Jonathan by her grandparents. The petition was dismissed on the ground that the child had not lived with the grandparents for the requisite six months. Upon learning the action for adoption, petitioner filed for a writ of habeas corpus which was granted by the lower court. Held: While the tender years presumption in favor of the mother is no longer in effect, custody should still be granted to appellant on the basis that she has been the primary caretaker of the child in question. Logically, the primary caretaker parent is not in superior financial position as such, the material welfare of the child depends on the award of support. Court therefore held that the presumption is in favor of the primary caretaker parent if he or she meets the minimum objective standard for being a parent. The presumption shall only apply to children of tender years. Custody was granted to Gwendolyn McCoy. Court held that manipulation of the welfare system to provide for the childs healthcare shall not be construed as an attempt to abandon the child. Other Effects

CC Article 372: When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. This is so because her married status is not affected by the separation. After legal separation, the marriage bonds are not severed.

CC Article 370: A married woman may use: (1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs." Matute vs. Macadalo Facts: Petitioner Rosario Matute and private respondent Armando Medel were legally separated on the ground of adultery committed by petitioner with her brother-in-law. Custody of the four minor children was thereby awarded to Armando. With permission from private respondent, petitioner brought her children to Manila to attend her fathers wake. Thereafter, she fi led a civil suit, praying for custody of her children whom she alleged has expressed preference to stay with her. Three of the said children were no longer of tender years. Armando moved to have Rosario charged with contempt of court for disobeying the courts decision to grant custody to Armando but the court did not accede owing to the fact that Armand o consented. However, the court did not grant custody to petitioner. Petitioner argued that the act of adultery she was charged with does not constitute moral depravity. Armando was found to be living with a different woman and such relations were likewise adulterous. Held: Alleged errors by respondent were merely errors of judgment and not errors of jurisdiction. Laperal vs. Republic of the Philippines

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Facts: Elisea Laperal has been legally separated from her husband Enrique Santamaria. During their marriage, petitioner used the latters surname. She prayed that she be allowed to use her maiden name considering that she and her husband had not lived together for a long time. Petition was opposed b y the City Attorney of Bagiuo but in a motion for reconsideration, the petition was granted on the basis that the use of the married name will give rise to confusion in finances and the eventual liquidation of the conjugal assets. Held: The language of the statute is mandatory and a woman shall continue using her married name because her married status is unaffected by her legal separation. The fact of legal separation alone is not a sufficient ground to justify a change of name. Reconciliation FC Article 65: If the spouses reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. FC Article 66: The reconciliation referred to in the preceding article shall have the following consequences: 1. The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and 2. The final decree of legal separation shall be set aside but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The courts order containing the foregoing shall be recorded in the proper civil registries. FC Article 67: The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify: 1. The properties to be contributed anew to the restored regime; 2. Those to be retained as separate properties of each spouse; and 3. The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measures to protect the interest of creditors and such order shall be recorded in the proper registries of properties. The recording of the order in the registries of property shall not prejudice any creditor not listed or not notified unless the debtor-spouse has sufficient separate properties to satisfy. - The word revive implies that the conjugal property regime prior to the decree of legal separation would be restored however, parties are still allowed to stipulate what would be brought into the revived property regime. Reconciliation must be a voluntary mutual agreement to live together as husband and wife. Filing of manifestation is only needed to terminate the case in court and for purposes of future property relations of the spouses. If the reconciliation takes place after the decree of legal separation has been handed down by the court, the decree is set aside, and all the orders in that decree will have no effect, except as to the property relations of the spouses. The community of property or conjugal partnership of gains is not automatically revived. After the spouses have reconciled, a new action for legal separation can be based only on the subsequent or other causes, but not on the causes already pardoned.

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