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NEW RULE ON
LEGAL
SEPARATION
(Supreme
Court A.M. N0. 02-11-11)
SECTION 1. Scope.–This
Rule shall govern petitions for legal separation under the Family Code of
the Philippines.
The Rules of Court shall apply
suppletorily.
Sec. 2.
Petition.–
(a) Who may and when to
file.–(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:
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Repeated physical violence or
grossly abusive conduct directed against the petitioner, a common child,
or a child of the petitioner;
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Physical violence or moral
pressure to compel the petitioner to change religious
or political affiliation;
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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;
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Final judgment sentencing the
respondent to imprisonment of more than six years, even if pardoned;
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Drug addiction or habitual
alcoholism of the respondent;
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Lesbianism or homosexuality of
the respondent;
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Contracting by the respondent
of a subsequent bigamous marriage, whether in or outside the
Philippines;
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Sexual infidelity or
perversion of the respondent;
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Attempt on the life of
petitioner by the respondent; or
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Abandonment of petitioner by
respondent without justifiable cause for more than one year.
Contents and form.–The
petition for legal separation shall:
(1) Allege the complete facts
constituting the cause of action.
(2) 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.
(3) Be verified and
accompanied by a certification against forum shopping. The verification
and certification must be personally signed by the petitioner. No petition
may 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.
(4) Be filed in six copies.
The petitioner shall, within five days from such filing, furnish a copy of
the petition to the City or Provincial Prosecutor and the creditors, if
any, and submit to the court proof of such service within the same period.
Failure to comply with the
preceding requirements may be a ground for immediate dismissal of the
petition.
(c) Venue.–The petition
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.
Sec. 3. Summons.–The
service of summons shall be governed by Rule 14 of the Rules of Court and
by the following rules:
(a) 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, by
leave of 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.
(b) 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.
Sec. 4. Motion to Dismiss.–No
motion to dismiss the petition shall be allowed except on the ground of
lack of jurisdiction over the subject matter or over the parties;
provided, however, that any other ground that might warrant a dismissal of
the case may be raised as an affirmative defense in an answer.
Sec. 5. Answer .– (a) The
respondent shall file his answer 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.
(b) If the respondent fails to
file an answer, the court shall not declare him in default.
(c) Where no answer 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. .
Sec. 6. Investigation Report
of Public Prosecutor.–(a) Within one month after receipt of the court
order mentioned in paragraph (c) of the preceding section, 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.
(b) 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.
(c) If the public prosecutor
reports that no collusion exists, the court shall set the case for
pre-trial. It shall be the duty of the public prosecutor to appear for the
State at the pre-trial.
Sec. 7. Social Worker.–The
court may require a social worker to conduct a case study 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.
Sec. 8.
Pre-trial.–
(a) Pre-trial mandatory.–A
pre-trial is mandatory. On motion or motu proprio, 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.
(b) Notice of Pre-trial.–(1)
The notice of pre-trial shall contain:
(a) the date of pre-trial
conference; and
(b) an order directing the
parties to file and serve their respective pre-trial briefs in such manner
as shall ensure the receipt thereof by the adverse party at least three
days before the date of pre-trial.
(2) The notice shall be served
separately on the parties and their respective counsels as well as on the
public prosecutor. It shall be their duty to appear personally at the
pre-trial.
(3) Notice of pre-trial shall
be sent to the respondent even if he fails to file an answer. In case of
summons by publication and the respondent failed to file his answer,
notice of pre-trial shall be sent to respondent at his last known address.
Sec. 9. Contents of pre-trial
brief.–The pre-trial brief shall contain the following:
(1) A statement of the
willingness of the parties to enter into agreements as may be allowed by
law, indicating the desired terms thereof;
(2) A concise statement of
their respective claims together with the applicable laws and authorities;
(3) Admitted facts and
proposed stipulations of facts, as well as the disputed factual and legal
issues;
(4) All the evidence to be
presented, including expert opinion, if any, briefly stating or describing
the nature and purpose thereof;
(5) The number and names of
the witnesses and their respective affidavits; and
(6) Such other matters as the
court may require.
Failure to file the pre-trial
brief or to comply with its required contents shall have the same effect
as failure to appear at the pre-trial under the succeeding section.
Sec. 10. Effect of failure
to appear at the pre-trial.–(1) 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.
(2) 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.
Sec. 11. Pre-trial
conference.–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.
Sec. 12. Pre-trial order.–(a)
The proceedings in the pre-trial shall be recorded. Upon termination of
the pre-trial, the court shall issue a pre-trial order which shall recite
in detail the matters taken up in the conference, the action taken
thereon, the amendments allowed on the pleadings, and, except as to the
ground of legal separation, the agreements or admissions made by the
parties on any of the matters considered, including any provisional order
that may be necessary or agreed upon by the parties.
(b) Should the action proceed
to trial, the order shall contain a recital of the following:
(1) Facts undisputed,
admitted, and those which need not be proved subject to Section 13 of this
Rule;
(2) Factual and legal issues
to be litigated;
(3) Evidence, including
objects and documents, that have been marked and will be presented;
(4) Names of witnesses who
will be presented and their testimonies in the form of affidavits; and
(5) Schedule of the
presentation of evidence.
The pre-trial order shall also
contain a directive to the public prosecutor to appear for the State and
take steps to prevent collusion between the parties at any stage of the
proceedings and fabrication or suppression of evidence during the trial on
the merits.
(c) The parties shall not be
allowed to raise issues or present witnesses and evidence other than those
stated in the pre-trial order. The order shall control the trial of the
case unless modified by the court to prevent manifest injustice.
(d) The parties shall have five
days from receipt of the pre-trial order to propose corrections or
modifications.
Sec. 13. Prohibited
compromise.–The court shall not allow compromise on prohibited
matters, such as the following:
(1) The civil status of
persons;
(2) The validity of a marriage
or of a legal separation;
(3) Any ground for legal
separation;
(4) Future support;
(5) The jurisdiction of
courts; and
(6) Future legitime.
Sec. 14. Trial.–(a) The
presiding judge shall personally conduct the trial of the case. No
delegation of the reception of evidence to a commissioner shall be allowed
except as to matters involving property relations of the spouses.
(b) The grounds for legal
separation must be proved. No judgment on the pleadings, summary judgment,
or confession of judgment shall be allowed.
(c) 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 or public
morals.
(d) 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.
Sec. 15. Memoranda.–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.
Sec. 16. Decision.–(a)
The court shall deny the petition 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.
(b) If the court renders a
decision granting the petition, 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.
(c) 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.
(d) 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.
Sec. 17.
Appeal.–
(a) Pre-condition.–No appeal
from the decision shall be allowed unless the appellant has filed a motion
for reconsideration or new trial within fifteen days from notice of
judgment.
(b) Notice of Appeal.–An
aggrieved party or the Solicitor General may appeal from the decision by
filing a Notice of Appeal within fifteen days from notice of denial of the
motion for reconsideration or new trial. The appellant shall serve a copy
of the notice of appeal upon the adverse parties.
Sec. 18. Liquidation,
partition and distribution, custody, and support of minor children.–Upon
entry of the judgment granting the petition, or, in case of appeal, upon
receipt of the entry of judgment of the appellate court granting the
petition, the Family Court, on motion of either party, shall proceed with
the liquidation, partition and distribution of the properties of the
spouses, including custody and support of common children, under the
Family Code unless such matters had been adjudicated in previous judicial
proceedings.
Sec. 19. Issuance of Decree
of Legal Separation.–(a) 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.
(b) The court shall quote in the
Decree the dispositive portion of the judgment entered and attach to the
Decree the approved deed of partition.
Sec. 20.
Registration and publication of the Decree of Legal Separation; decree as
best evidence. -
(a) Registration of decree.–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.
(b) Publication of 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.
(c) Best evidence.–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.
Sec. 21. Effect of death of
a party; duty of the Family Court or Appellate Court.–(a) In case a
party dies at any stage of the proceedings before the entry of judgment,
the court shall order the case closed and terminated without prejudice to
the settlement of estate in proper proceedings in the regular courts.
(b) If the party dies after the
entry of judgment, the same shall be binding upon the parties and their
successors in interest in the settlement of the estate in the regular
courts.
Sec. 22. Petition for
revocation of donations.–(a) Within five (5) years from the date the
decision granting the petition for legal separation has become final, the
innocent spouse may file a petition under oath in the same proceeding for
legal separation to revoke the donations in favor of the offending spouse.
(b) The revocation of the
donations shall be recorded in the Register of Deeds in the places where
the properties are located.
(c) Alienations, liens, and
encumbrances registered in good faith before the recording of the petition
for revocation in the registries of property shall be respected.
(d) After the issuance of the
Decree of Legal Separation, the innocent spouse may revoke the designation
of the offending spouse as a beneficiary in any insurance policy even if
such designation be stipulated as irrevocable. The revocation or change
shall take effect upon written notification thereof to the insurer.
Sec. 23. Decree of
Reconciliation.–(a) If the spouses had reconciled, a joint
manifestation under oath, duly signed by the spouses, may be filed in the
same proceeding for legal separation.
(b) If the reconciliation
occurred while the proceeding for legal separation is pending, the court
shall immediately issue an order terminating the proceeding.
(c) If the reconciliation
occurred after the rendition of the judgment granting the petition for
legal separation but before the issuance of the Decree, the spouses shall
express in their manifestation whether or not they agree to revive the
former regime of their property relations or choose a new regime.
The court shall immediately
issue a Decree of Reconciliation declaring that the legal separation
proceeding is set aside and specifying the regime of property relations
under which the spouses shall be covered.
(d) If the spouses reconciled
after the issuance of the Decree, the court, upon proper motion, shall
issue a decree of reconciliation declaring therein that the Decree is set
aside but the separation of property and any forfeiture of the share of
the guilty spouse already effected subsists, unless the spouses have
agreed to revive their former regime of property relations or adopt a new
regime.
(e) In case of paragraphs (b),
(c), and (d), if the reconciled spouses choose to adopt a regime of
property relations different from that which they had prior to the filing
of the petition for legal separation, the spouses shall comply with
Section 24 hereof.
(f) The decree of
reconciliation shall be recorded in the Civil Registries where the
marriage and the Decree had been registered.
Sec. 24. Revival of property
regime or adoption of another.–(a) In case of reconciliation under
Section 23, paragraph (c) above, the parties shall file a verified motion
for revival of regime of property relations or the adoption of another
regime of property relations in the same proceeding for legal separation
attaching to said motion their agreement for the approval of the court.
(b) The agreement which shall
be verified shall specify the following:
(1) The properties to be
contributed to the restored or new 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.
(c) The creditors shall be
furnished with copies of the motion and the agreement.
(d) The court shall require the
spouses to cause the publication of their verified motion for two
consecutive weeks in a newspaper of general circulation.
(e) After due hearing, and the
court decides to grant the motion, it shall issue an order directing the
parties to record the order in the proper registries of property within
thirty days from receipt of a copy of the order and submit proof of
compliance within the same period.
Sec. 25. Effectivity.–This
Rule shall take effect on March 15, 2003 following its publication in a
newspaper of general circulation not later than March 7, 2003.
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