CAPÍTULO 1: TIEMPO LIBRE Y OCIO
1.2. Tiempo libre
1.2.1. Aproximación al concepto de tiempo libre
Q: What is the rule in rendering a judgment of legal separation based upon a stipulation of facts or confession of judgment?
A: A decree of legal separation cannot be issued solely on the basis of a stipulation of facts or a confession of judgment. The grounds for legal separation must be proved. Neither confession of judgment nor summary judgment is allowed.
Note: What the law prohibits is a judgment based exclusively or mainly on defendant's confession. ( Ocampo v. Florenciano,G.R. No. L‐13553, February 23, 1960)
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U N I V E R S I T Y O F S A N T O T O M A S F a c u l t a d d e D e r e c h o C i v i l
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
EXTENT OF INQUIRY OF PROSECUTOR
Q: After learning of Juanita’s misconduct, William filed a petition for legal separation.
During his cross‐examination by the Assistant Fiscal, it was discovered that William lived with a woman named Lilia and had children with her after the liberation. The court denied the petition on the ground both of them had incurred in a misconduct of similar nature that barred the right of action under Art. 100, NCC.
William argues that in cross‐examining him with regard to his marital relation with Lilia, who was not his wife, the Assistant Fiscal acted as counsel for Juanita when the power of the prosecuting officer is limited to finding out whether or not there is collusion, and if there is no collusion, to intervene for the state. Is his argument correct?
A: The argument is untenable. It was legitimate for the Fiscal to bring to light any circumstances that could give rise to the inference that Juanita's default was calculated, or agreed upon, to enable him to obtain the decree of legal separation that he sought without regard to the legal merits of his case. One such circumstance is the fact of William's cohabitation with Lilia, since it bars him from claiming legal separation by express provision of Article 100 of the new Civil Code.
Such evidence of misconduct is a proper subject of inquiry as they may justifiably be considered circumstantial evidence of collusion between the spouses.
Article 101 NCC, calling for the intervention of the state attorneys in case of uncontested proceedings for legal separation (and of annulment of marriages, under Article 88) emphasizes that marriage is more than a mere contract; that it is a social institution in which the
state is vitally interested, so that its continuation or interruption cannot be made depend upon the parties themselves. It is consonant with this policy that the inquiry by the Fiscal should be allowed to focus upon any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not. (Brown v.Yambao, G.R. No. L‐10699, Oct. 18, 1957)
Q: Who may file, when and where should the petition for legal separation be filed?
A:
Who may
file Husband or wife
When to file Within 5 years from the time of the occurrence of the cause
Where to file
Family Court of the province or city where the petitioner or the respondent has been residing for
at least 6 months prior to the date of filing or in case of a non‐
resident, where he may be found in the Philippines, at the election
of the petitioner
F. EFFECTS OF FILING PETITION
Q:What are the effects of filing of a petition for legal separation?
A:
1. The spouses shall be entitled to live separately from each other.
2. In the absence of an agreement between the parties, the court shall designate either the husband or the wife or a 3rd person to administer the absolute community or conjugal partnership property.
G. EFFECTS OF PENDENCY
Q: What is the effect of the death of plaintiff‐
spouse before a decree of legal separation?
A: The death of plaintiff before a decree of legal separation abates such action. Being personal in character, it follows that the death of one party to the action causes the death of the action itself
‐ actio personalis moritur cum persona. Even if property rights are involved, because these rights are mere effects of the decree of legal separation, being rights in expectation, these rights do not come into existence as a result of the death of a party. Also under the Rules of Court, an action for legal separation or annulment of marriage is not
one which survives the death of spouse. (Lapuz v.
Eufemio, G.R. No. L‐31429, Jan. 31, 1972)
Q: May the heirs of the deceased spouse continue the suit (petition for decree of legal separation) if the death of the spouse takes place during the pendency of the suit?
A: No. An action for legal separation is purely personal, therefore, the death of one party to the action causes the death of the action itself – action personalis moritur cum persona.
Note: Incases where one of the spouses is dead as well as in case the deceased’s heirs continue the suit,Separation of property and any forfeiture of share already effected subsists, unless spouses agree to revive former property regime
H. EFFECTS OF LEGAL SEPARATION
Q: What are the effects of decree of legal separation?
A:
1. Spouses entitled to live separately;
Note: Marriage bond not severed
2. ACP/CPG shall be dissolved or liquidated;
Note:But offending spouse shall have no right to any share of the net profits earned by the AC/CP which shall be forfeited in according w/ Art. 43(2).
3. Custody of minor children is awarded to the innocent spouse (subject to Art.
213, FC);
4. Offending spouse is disqualified to inherit from innocent spouse by intestate succession;
5. Provisions in will of innocent spouse which favors offending spouse shall be revoked by operation of law;
6. Innocent spouse may revoke donations he/she made in favor of offending spouse;
Note: Prescriptive period: 5 years from finality of decree of legal separation
7. Innocent spouse may revoke designation of offending spouse as beneficiary in any insurance policy (even when stipulated as irrevocable).
Note: An action for legal separation which involves nothing more than bed‐and‐board separation of the
spouses is purely personal. The Civil Code recognizes this (1) by allowing only the innocent spouse and no one else to claim legal separation; (2) by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already granted.(Lapuz v. Eufemio, G.R. No. L‐31429, Jan. 31, 1972)
Q: May the wife who has been granted legal separation petition be allowed to revert to her maiden name?
A: No. The marriage bond not having severed, the woman remains to be the lawful wife of the man.
Note: Even under the Civil Code, the use of the husband's surname during the marriage (Art. 370, Civil Code), after annulment of the marriage (Art.
371, Civil Code) and after the death of the husband (Art. 373, Civil Code) is permissive and not obligatory except in case of legal separation (Art. 372, Civil Code). Under the present article of our Code, however, the word "may" is used, indicating that the use of the husband's surname by the wife is permissive rather than obligatory. We have no law which provides that the wife shall change her name to that of the husband upon marriage. This is in consonance with the principle that surnames indicate descent. It seems, therefore, that a married woman may use only her maiden name and surname. She has an option, but not a duty, to use the surname of the husband in any of the ways provided by this Article. (Yasin v. Hon. Judge Sharia’h District court, G.R. No. 94986, Feb. 23, 1995)
Q: Which of the following remedies, a. declaration of nullity of marriage, b. annulment of marriage,
c. legal separation, and/or d. separation of property,
can an aggrieved spouse avail himself/herself of:
a. If the wife discovers after the marriage that her husband has “AIDS”?
A: Since AIDS is a serious and incurable sexually transmissible disease, the wife may file an action for annulmentof the marriage on this ground whether such fact was concealed or not from the wife, provided that the disease was present at the time of the marriage. The marriage is voidable even though the husband was not aware that he had the disease at the time of marriage.
b. 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?
A: 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 the action for legal separationunder Art. 55 (10) of the Family Code 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 (Article 101, FC). The intention not to return cannot be presumed during the 30year period of her contract.
c. If the husband discovers after the marriage that his wife has been a prostitute before they got married?
A: If the husband discovers after the marriage that his wife was a prostitute before they got married, he has no remedy. No misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute fraud as legal ground for an action for the annulment of marriage (Article 46 FC).
d. If the husband has a serious affair with his secretary and refuses to stop notwithstanding advice from relatives and friends?
A: The wife may file an action for legal separation. The husband’s sexual infidelity is a ground for legal separation (Article 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 (Article 135 (4), 101, FC).
e. If the husband beats up his wife every time he comes home drunk?
A: The wife may file an action for legal separationon the ground of repeated physical violence on her person (Article 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 (Article 135 (4), Article 101, FC). She may also file an action for declaration of nullityof the marriage if the husband’s behavior constitute psychological incapacity existing at the time of the celebration of marriage. (2003 Bar Question)
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I. RECONCILIATION
Q: What are the effects of reconciliation?
A:
1. As to the Decree:
a. During the pendency of the case: LS proceedings terminated in whatever stage
b. After the issuance of the decree:
Final decree of LS to be set aside
2. As to the Property Regime:
GR: With respect to separation of properties, the same shall subsist.
XPN: The parties, however, can come into an agreement to revive their previous regime. Their agreement must be under oath and must contain a list of the properties desired to be returned to the community or conjugal property and those which will remain separate, a list of creditors and their addresses.
3. As to capacity to succeed: The Family Code does not provide for the revival of revoked provisions in a will originally made in favor of the offending party as a result of the LS. This absence gives the innocent spouse the right to choose whether the offending spouse will be reinstituted.
4. As to the forfeited shares: Those given to the children cannot be returned since the spouses are no longer the owners of such. But those given to the innocent spouse may be returned.
Note: In an action for legal separation on the ground of adultery filed by the husband, even though the defendant wife did not interpose the defense of prescription, nevertheless, the courts can take cognizance thereof, because actions seeking a decree of legal separation or annulment of marriage, involve public interest, and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record. Also, the husband was guilty of commission of the same offense by living with another woman.
This is an exception to the Rules of Court provision that defenses not raised in the pleadings will not be considered since provisions on marriage are substantive in nature.(Brown v. Yambao, G.R. No. L‐
10699, Oct. 18, 1957)
U N I V E R S I T Y O F S A N T O T O M A S F a c u l t a d d e D e r e c h o C i v i l
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
Q: Does reconciliation automatically revive the former property regime of the spouses?
A: No. If the spouses want to revive the previous property regime, they must execute an agreement to revive the former property regime, which agreement shall be submitted in court, together with a verified motion for its approval.
(Art. 67, Family Code)
The agreement to revive must be under oath and specify:
1. The properties to be contributed anew to the restored regime;
2. Those to be retained as separated properties of each spouse; and 3. The names of all their known creditors,
their addresses and the amounts owing to each.
Q: How does Declaration of Nullity of Marriage, Annulment of Marriage and Legal Separation differ from each other?
ANNULMENT LEGAL SEPARATION Marriage bond
Dissolved Dissolved
No effect,
1. if donee contracted the marriage in bad faith, such donations made to said donee shall be revoked by operation of law.
2. if both spouses to the marriage acted in bad