This is a free legal advice on how to file for legal separation and the procedures in the petition for legal seperation.
A petition for legal separation is different from a petition for declaration of nullity of marriage (annulment). The most important distinction is the right of the spouse/s to remarry under the petition for annulment which cannot be had under a petition for legal separation.
1) A petition for legal separation may be filed only by the husband or the wife, as the case may be within five years from the time of the occurrence of any of the following causes:
(a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
(b) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(c) 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;
(d) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(e) Drug addiction or habitual alcoholism of the respondent;
(f) Lesbianism or homosexuality of the respondent;
(g) Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the Philippines;
(h) Sexual infidelity or perversion of the respondent;
(i) Attempt on the life of petitioner by the respondent; or virtual law library
(j) Abandonment of petitioner by respondent without justifiable cause for more than one year.
2) The petition for legal separation shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing "or in The case of a non-resident respondent, where he may be found in the Philippines, at the election of the petitioner.
3) The petition for legal separation must contain the complete facts constituting the ground for legal separation and must state the names and ages of the common children of the parties, specify the regime governing their property relations, the properties involved, and creditors, if any. If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other similar matters requiring urgent action,
The petition for legal separation must also be verified and accompanied by a certification against forum shopping. The verification and certification must be personally signed by the petitioner. The petition for legal separation cannot be filed solely by counsel or through an attorney-in-fact. If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country
The petitioner shall, within five days from such filing, furnish a copy of the petition for legal separation to the City or Provincial Prosecutor and the creditors, if any, and submit to the court proof of such service within the same period.
4) After furnishing copy of the petition for legal separation to the office of the Solicitor General and City or Provincial Prosecutor, the court will order the service of summons to the respondent.
Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, with prior approval of the court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such place as the court may order. In addition, a copy of the summons shall be served on respondent at his last known address by registered mail or by any other means the court may deem sufficient.
The summons to be published shall be contained in an order of the court with the following data; (1) title of the case; (2) docket number; (3) nature of the petition; (4) principal grounds of the petition and the reliefs prayed for, and (5) a directive for respondent to answer within thirty days from the last issue of publication.
5) After service of summons, the court will order the respondent to file his Answer to the petition for legal separation within fifteen days from receipt of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by respondent himself and not by counsel or attorney-in-fact. Where no answer to the petition for legal separation is filed/or if the answer does not tender an issue the court shall order the public prosecutor to investigate whether collusion exists between the parties.
6) Within one month after receipt of the court order above, the public prosecutor shall submit a report to the court on whether the parties are in collusion and serve copies on the parties and their respective counsels, if any. If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of copy of the report. The court shall set the report for hearing and if convinced that parties are in collusion, it shall dismiss the petition for legal separation.
If the public prosecutor reports that no collusion exists, the court shall set the case or petition for legal separation for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.
7) The court may require a social worker to conduct a case study on the petition for legal separation and to submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary,
8) Thereafter, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties on a date not earlier than six months from date of the filing of the petition for legal separation.
If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. If the respondent filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days a report to the court stating whether his non-appearance is due to any collusion between the parties/ If there is no collusion the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence.
At the pre-trial conference, the court may refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law. The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month.
In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the petition.
9) After pre-trial, the court the presiding judge shall personally conduct the trial of the case or petition for legal separation. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses. During the trial the grounds for legal separation must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed.
The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the party's right to privacy; or would be offensive to decency
No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court.
10) After the trial, the case or petition for legal separation shall be deemed submitted for the decision of the court. But before that, the court may require the parties and the public prosecutor to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda.
The court shall deny the petition for legal separation on any of the following grounds:
(1) The aggrieved party has condoned the offense or act complained of or has consented to the commission of the offense or act complained of;
(2) There is connivance in the commission of the offense - or act constituting the ground for legal separation;
(3) Both parties have given ground for legal separation;
(4) There is collusion between the parties to obtain the decree of legal separation; or
(5) The action is barred by prescription.
If the court renders a decision granting the petition for legal separation, it shall declare therein that the Decree of Legal Separation shall be issued by the court only after full compliance with liquidation under the Family Code.
However, in the absence of any property of the parties, the court shall forthwith issue a Decree of Legal Separation which shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court granting the legal separation is located.
The decision shall likewise declare that:
(1) The spouses are entitled to live separately from each other but the marriage bond is not severed;
(2) The obligation of mutual support between the spouses ceases; and
(3) The offending spouse is disqualified from inheriting from the innocent spouse by intestate succession, and provisions in favor of the offending spouse made in the will of the innocent spouse are revoked by operation of law.
The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall also be published once in a newspaper of general circulation.
11) The court shall issue the Decree of Legal Separation after:
(1) registration of the entry of judgment granting the petition for legal separation in the Civil Registry where the marriage was celebrated and in the Civil Registry where the Family Court is located; and
(2) registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located.
The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.
12) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, in the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree. In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation.
The registered Decree shall be the best evidence to prove the legal separation of the parties and shall serve as notice to third persons concerning the properties of petitioner and respondent.
Supreme Court Administrative Matter No. 02-11-11
MARCH 15, 2003
MARCH 15, 2003