A.
M. NO. 02-11-11-SC
MARCH
15, 2003
RE:
PROPOSED RULE
ON LEGAL SEPARATION
R E S O
L U T
I O N
Acting on the letter
of the Chairman of the Committee on Revision of the Rules
of Court submitting for this Court's consideration and approval the
Proposed Rule on Legal Separation, the Court Resolved to APPROVED the
same.cralaw:red
The Rule shall take
effect on March 15, 2003 following its publication in a newspaper of
general
circulation not later than March 7, 2003
March 4, 2003
Davide Jr. C.J.,
Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval
Gutierrez,
Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr. and Azcuna, JJ.
Ynares-Santiago,on
leave,
Corona, officially
on leave.cralaw:red
RULE ON
LEGAL
SEPARATION
Section 1. Scope.
- This Rule shall govern petitions for legal separation under the Family
Code of the Philippines.cralaw:red
The Rules
of Court shall apply suppletorily.chan
robles virtual law library
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:chanrobles virtual law library
(a)
Repeated
physical violence or grossly abusive conduct directed against the
petitioner,
a common child, or a child of the petitioner;chan
robles virtual law library
(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;chan
robles virtual law library
(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; orchan
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(j)
Abandonment of
petitioner by respondent without justifiable cause for more than one
year.cralaw:red
(b)
Contents and
form. - The petition for legal separation shall:chan
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(1)
Allege the complete
facts constituting the cause of action.chan
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(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.cralaw:red
Failure
to comply
with the preceding requirements may be a ground for immediate dismissal
of the petition.chan
robles
virtual law library
(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.cralaw:red
Sec. 3.
Summons. - The
service of summons shall be governed by Rule 14 of the Rules
of Court and by the following rules:chan
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(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.cralaw:red
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.chan
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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.chan
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(b) If the respondent
fails to file an answer, the court shall not declare him in default.cralaw:red
(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.cralaw:red
Sec. 6. Investigation
Report of Public Prosecutor. - (a) Within one 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.cralaw:red
(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.cralaw:red
(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.cralaw:red
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.
-chan
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library
(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.chan
robles virtual law library
(b) Notice of Pre-trial.-
(1) The notice of pre-trial shall contain:chanrobles virtual law library
(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.cralaw:red
(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.cralaw:red
Sec. 9. Contents
of pre-trial brief. - The pre-trial brief shall contain the following:chanrobles virtual law library
(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;chan
robles virtual law library
(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; andchan
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(6) Such other matters
as the court may require.cralaw:red
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.cralaw:red
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.cralaw:red
(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.chan
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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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
(b) Should the action
proceed to trial, the order shall contain a recital of the following:chan
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(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;chan
robles virtual law library
(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 cralaw:red
(5)
Schedule of the
presentation of evidence.cralaw:red
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.chan
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virtual law library
(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.cralaw:red
(d) The parties shall
have five days from receipt of the pre-trial order to propose
corrections
or modifications.cralaw:red
Sec. 13. Prohibited
compromise. - The court shall not allow compromise on prohibited
matters,
such as the following:chanrobles virtual law library
(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 cralaw:red
(6) Future legitime.cralaw:red
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.cralaw:red
(b) The grounds for
legal separation must be proved. No judgment on the pleadings, summary
judgment, or confession of judgment shall be allowed.chan
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(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
(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.cralaw:red
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.cralaw:red
Sec. 16. Decision.
- (a) The court shall deny the petition on any of the following grounds:chanrobles virtual law library
(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;chan
robles virtual law library
(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;chan
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(4) There
is collusion
between the parties to obtain the decree of legal separation; or
(5) The
action is
barred by prescription.cralaw:red
(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.cralaw:red
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:chanrobles virtual law library
(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 cralaw:red
(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.cralaw:red
(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.cralaw:red
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.chan
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Sec. 19. Issuance
of Decree of Legal Separation. - (a) The court shall issue the Decree
of
Legal Separation after:chanrobles virtual law library
(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.cralaw:red
(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.chan
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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 iron 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.cralaw:red
(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.cralaw:red
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 me proceedings before the entry of
judgment,
the court shall order the case closed and terminated without prejudice
to the settlement of estate proper proceedings in the regular courts.chan
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(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.cralaw:red
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 the same proceeding
for legal separation to revoke the donations in favor of the offending
spouse.cralaw:red
(b) The revocation
of the donations shall be recorded in the Register of Deeds of Deeds in
the places where the properties are located.cralaw:red
(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.cralaw:red
(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.cralaw:red
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.cralaw:red
(b) If the reconciliation
occurred while the proceeding for legal separation is pending, the
court
shall immediately issue an order terminating the proceeding.chan
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(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.cralaw:red
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.cralaw:red
(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.cralaw:red
(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.cralaw:red
(f) The decree of
reconciliation shall be recorded in the Civil Registries where the
marriage
and the Decree had been registered.cralaw:red
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:chan
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(1)
The
properties to be contributed to the restored or new regime;chan
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(2)
Those to be retained
as separate properties of each spouse; andchan
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(3) The
names of
all their known creditors, their addresses, and the amounts owing to
each.cralaw:red
(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.cralaw:red
(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.chan
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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.chan
robles virtual law library
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