Comparison Among Void, Voidable and Legal Separation

COMPARISON AMONG VOID, VOIDABLE, LEGAL SEPARATION, DE FACTO SEPARATION DETAILS Nature recognition

VOID No legal effect

VOIDABLE Valid until annulled

LEGAL SEPARATION Marriage bonds subsist; separation by a mensa

DEFACTO SEPARATION No legal

et thoro (bed and board) Means of Impugning

Declaration of nullity

Petition for annulment

Petition for legal separation

None

Manner/Kind of attack

Direct or Collateral

Direct

Direct

None

Who may file action

Anyone

Only Spouses Only Spouses Article 47 1. The parents, guardian, person having legal charge of party who contracted marriage without parental consent before party reaches 21. The party within 5 years after reaching 21 years old 2. The guardian or person with legal charge of the insane party; the sane party, if insanity was not known; the insane upon regaining sanity or in a lucid Interval 3. Person subjected to fraud within 5 years from discovery of fraud 4. Person subjected to force within 5 years from cessation of the said force 5. For physical incapacity to consummate and sexuality transmissible disease, five years from marriage

None

Prescription

Article 39 – Action or defense is imprescribtible

Normally five years(refer to Article 47) Article 57 Five years from the date of occurrence of cause

None

Property Regime

Co-ownership

ACP or CPG

ACP or CPG

ACP or CPG

Children

Illegitimate except those Conceived per Article 36 (Psychological incapacity) And Article 53 (Allowed Subsequent marriage)

Article 54 Legitimate

Legitimate

Legitimate

Grounds/action

A. Article 35 1. Those married below 18 Even if with parental consent 2. If solemnizing officer did not Except marriage which are entered By one or either spouse where they

Article 45 1. Marriages of those 18 but without parental consent 2. Unsound mind 3. Contracted through fraud 4. Contracted through force,

Article 55 1. Repeated physical violence or grossly abuse conduct against petitioner, common children, children of petitioner 2. Physical violence or mental duress to petitioner, children or children of petitioner to

DEFENSES/ RATIFICATON

That solemnizing officer had authority intimidation, duress 3. No valid marriage license except 5. Incapacity to consummate as allowed by: 6. Transmittal Sexual Disease a. Article 27 (in articulo that is serious and incurable mortis), b. Article 28 (residence is Article 46 - Fraud such that there is no transportation 1. Non disclosure of conviction to o to Civil Registrar), by final judgment of moral turpitude c. Article 34 (Muslim or 2. Concealment of pregnancy by man or other indigenous tribes where other than husband ceremony is held under their custom 3. Concealment of alcoholism or and tradition) drug addiction, homosexuality or 4. Bigamous or polygamous lesbianism Marriages 4. Concealment of sexually 5. Marriage by mistake of identity transmissible disease 6. Void subsequent marriages under Article 53 B. Article 36 (psychological incapacity) C. Article 37 (Incestuous Marriages) 1. Between ascendants & descendants 2. Between brothers & sisters D. Article 38 (Marriages void by public Policy) 1. Between step parents and step children 2. Between parents-in-law & children-in-law 3. Between adopted children & adopting parents 4. Between surviving spouse of adopted child and adopting parent 5. Between surviving adopting parent and adopted child 6. Between adopted children & legitimate children 7. Between adopted children of same adopting parent 8. Among blood relatives up to 4th degree 9. Between parties where one, with the the intention to marry the other killed the other’s spouse or his or her own spouse

change religious or political affiliation 3. Attempt to corrupt or induce petitioner, petitioner’s children, common children to prostitution or 4. Imprisonment by final judgment of more than six years, even if pardoned 5. Drug addiction or habitual drug use 6. Homosexuality or lesbianism 7. Sexual infidelity or perversion 8. Unjustified abandonment of one year 9. Attempt to kill the petitioner 10. Contracting of another marriage, locally or abroad

NONE

Article 56 1. Condonation of acts by aggrieved party 2. Consent of acts of aggrieved party 3. Connivance 4. Mutual fault (clean hands) 5. Collusion to obtain legal separation 6. Barred by prescription

Article 45 (Exist at marriage) 1. No parental consent - cohabit freely after attaining 21 2. Unsound mind – party of unsound mind after coming to reason cohabit freely 3. Fraud or force – freely cohabit

after knowledge of fraud or cessation WHILE PENDING

EFFECTS OF ACTION

NONE

Article 49 Article 61 In the absence of any written 1. Live separately agreement, Court shall provide for 2. In the absence of written agreement the support of the spouses and the care Court shall appoint either spouse or a third of the common children. Court shall party to administer the ACP or CPG priority to the moral and material well- Article 62 being of the children and choice of In the absence of a written agreement, parent they would prefer to remain Court shall provide for the care of the spouse with. Court will provide appropriate and the care and support of the children. The visitation rights Court shall give priority to the moral and material Article 48 well being of the children and their choice as to 1. The court shall order the prosecuting which parent they wish to remain. Appropriate attorney or fiscal assigned to appear rights will be given to the other parent. on behalf of the State to take steps Article 58 to prevent collusion or fabrication An action for legal separation shall in no case or suppression of evidence. be tried before six months shall have lapsed 2. No judgment shall be based since the filing of the petition upon stipulation of facts or Article 59 confession of judgment No legal separation may be decreed unless the court has taken steps toward reconciliation of the spouses and is fully satisfied that, despite such efforts, reconciliation is high improbable. Article 60 No decree of separation shall be based on stipulation of facts or confession of judgment. Article 43 (termination of Article 50 Article 63 subsequent marriage) 1. The ACP or CPG will be dissolved 1. Marriage bonds subsist but couple 1. Children conceived prior to and liquidated except that the guilty will live separately termination are legitimate and their will forfeit his/her share of the net 2. The ACP or CPG shall be dissolved & care and support, in case of dispute profit in favor of common children or liquidated but guilty spouse shall forfeit any shall be decided in proper proceedings in default, the innocent spouse share in the net profit in favor of the common 2. The ACP or CPG shall be 2. Donations proter nuptias are valid children or in default, the innocent spouse liquidated and distributed except except if the donee is the guilty party, 3. Custody of children shall be awarded to the spouse who contracted marriage then the donation is revoked by innocent spouse in bad faith shall forfeit his/her share operation of law. 4. Guilty spouse shall be disqualified from to the common children or to guilty 3. Innocent spouse may revoke design- inheriting from innocent spouse by intestate spouse’s children, or in default to ation of guilty as beneficiary in succession. Provision in the will in favor of the innocent wife insurance policy, even if designation guilty spouse shall be revoked by law 3. Donations propter nuptias are valid is irrevocable Article 64 except if donee is guilty then 4. The guilty party cannot inherit from 1. Donations to the offending spouse may be donations are revoked by operation innocent spouse by testate or intestate revoked by the innocent spouse as well as of law. 5. Final judgment shall provide for the the designation in the insurance policy. 4. The innocent spouse shall revoke liquidation, partition, distribute of the 2. The revocation shall be registered in the the designation of the guilty party as ACP or CPG, the care and support of registries of property in the place where the insurance beneficiary common children and the delivery of properties are located. 5. Guilty party is disqualified from the presumptive legitimes. 3. Registered alienations, lien, or inheriting by testate or intestate 6. The creditors of the spouse and the encumbrances shall be respected. succession. ACP or CPG will be notified of 4. Change in beneficiary to take effect Article 44(Subsequent marriage) proceedings for liquidation upon written notification If both are guilty of bad faith, then 7. In the partition, the conjugal Article 379 of the Civil Code

Article 100 & 127 1. No support to spouse who leaves conjugal home without justification 2. Judicial authorization shall shall be obtained in summary proceedings when the consent of spouse to any transaction is required by law 3. If common property is not not enough, then the separate properties of both spouse shall be solidarily liable for the support of the family. The present spouse shall in a summary proceeding be given judicial authority to administer or encumber any specific separate property and use fruits to satisfy the share of guilty spouse.

donations to each other and testamentary disposition in favor of each other are revoked by law Article 371 of Civil Code In annulment of marriage, if wife is guilty spouse, then she resumes using maiden name. If innocent she may at her option go back to using her maiden name or use married name unless court decrees otherwise or she or her husband marries to another.

Convalidation/Reconciliation

dwelling shall go to the spouse with with whom children will live with. (Articles 102 & 129) Article 51 In the partition, the value of the presumptive legitimes of the children shall be delivered in cash, securities, or properties, unless the parties have by mutual agreement judicially approved provided for such matter. Children may ask for enforcement. Delivery of the legitime shall be be considered as advances on their legitime. They are in no way prejudiced with regard to ultimate successional rights of children upon death of parents. Article 52 The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children’s legitimes shall be recorded in the appropriate registry of properties or the civil registry Article 371 of Civil Code In annulment of marriage, if wife is guilty party, then she goes back her maiden name. Otherwise she has option unless there is court decree or she or her husband remarries another Article 53 Either of the former spouses may marry again after complying with the requirements. Otherwise, the subsequent marriage shall be null and void

When legal separation is granted, the wife may continue to use the surname she employed before the legal separation.

Article 45 Except for physical incapacity to consummate and the sexual disease, the marriage contrated for the others can be convalidated by offended party continuing to live as husband and wife

Article 65 If the couple reconcile, then a joint manifestation under oath signed by the couple will be filed with the court in the same proceeding for legal separation. Article 66 Effects of reconciliation are as ff: 1. Legal proceedins shall be terminated whatever stage

2. The final decree shall be set aside but the separation of the properties and the forfeiture of the share of the guilty spouse already effected shall subsist, unless the agree to revive their former property regime 3. The Court order shall be recorded in the proper civil registries. Article 67 The agreement to revive and shall be executed under oath and shall specify the ff: 1. The properties to be contributed 2. Properties to be retained by each 3. The names, addresses and amounts owed to the known creditors The agreement and the motion for revival shall be filed with the court with copies to all creditors. The Court, after hearing, shall take measures to protect the creditors and such order shall be recorded in the proper registries of property. The recording shall not prejudiced creditors not included or notified, unless the separate properties of spouse shall be enough to satisfy the creditor’s claims.