Articles 63 and 64 of the Family Code of the Philippines

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Article 63. The decree of legal separation shall have the following effects:


  1. The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;
  1. The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2);
  1. The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and
  1. The offending spouse shall be disqualified from inheriting from the spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a)

In this article, the law enumerates the effect of legal separation.
Living separately

 The right to live separately is a right even during the pendency of the action for legal separation. However, they are still considered married as the marriage bond is not severed.  One cannot be compelled to submit one’s self to sexual intercourse with the other.
Absolute community or Conjugal partnership

 Legal separation dissolves the absolute community or the conjugal partnership of gains. 

 It shall be liquidated, but the offending spouse shall not have no right to any share of the net profits earned by the community of properties. The share shall be forfeited in favor of the following :
  1.  the common children; or
  2.  the children of the guilty spouse by a previous marriage; or
  3.  the innocent spouse.
If there are no children, all the net gains of the community of properties shall redound to the innocent spouse. 
Custody of Children

As a rule, the custody of minor children is awarded to the innocent spouse, except if there is a child below the age of seven (7).

 Under Art. 213 of the Family Code, a child under the age of 7 cannot be separated from the mother, except if there is a compelling reason to separate him.

 In cases where the innocent spouse often travels because of the nature of his/her business or profession, the court may appoint a third person as a guardian for such minors.
There are minors who may be more than 7 years of age who may have chosen the innocent spouse, but if their choice does not serve their best interest, the court may still appoint a third person as guardian. For their choice is not always binding in court. 


Disqualification from Intestate Succession


The guilty spouse shall be disqualified from inheriting from the innocent spouse under the law of intestacy.

 It must be noted that disqualification is from intestacy; but not from testacy.

 If after a decree of legal separation, the innocent spouse would execute a will instituting the guilty spouse s heir, the institution is valid since the institution of is a matter of right of the testator. 

 The law further provides that if prior to the act that gave rise to legal separation, the innocent spouse has already executed a will instituting the guilty spouse, such institution is revoked by operation of law. However, if the testator-innocent spouse subsequently executes a will that totally revokes the previous will and institute the guilty spouse, then such institution is valid.


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Article 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as a beneficiary in any insurance policy,even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured.

        The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation has become final. (107a)

The law provides for other effects of legal separation, such as:
  1. The innocent spouse may revoke donations made by him/her to the offending spouse;
  2. The innocent spouse may revoke the designation of the guilty spouse as beneficiary in any insurance policy even if such designation is stipulated as irrevocable; 
The revocation of the donation must be recorded in the proper registry of property where the property is located. This is to protect the parties against the rights of innocent third persons.

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 Case Digest
G.R. No. 79955 January 27, 1989

IN THE MATTER OF THE PETITION FOR A WRIT OF HABEAS CORPUS OF MINOR ANGELIE ANNE C. CERVANTES, NELSON L. CERVANTES and ZENAIDA CARREON CERVANTES, petitioners,
vs.

GINA CARREON FAJARDO and CONRADO FAJARDO, respondents.


PONENTE: Padilla, J.


FACTS:
  • The minor, Angelie, was born on 14 February 1987 to respondents Conrado Fajardo and Gina Carreon, who are common-law husband and wife. Respondents offered the child for adoption to Gina Carreon's sister and brother-in-law, the herein petitioners Zenaida Carreon-Cervantes and Nelson Cervantes, spouses, who took care and custody of the child when she was barely two (2) weeks old. An Affidavit of Consent to the adoption of the child by herein petitioners, was also executed by respondent Gina Carreon on 29 April 1987. 
  • The petition for adoption (Sp. Proc. No. 057-B) was filed by the petitioners before the Regional Trial Court of Rizal, Branch 67 which, on 20 August 1987, rendered a decision  granting the petition. The child was then known as Angelie Anne Fajardo. 
  • The court ordered that the child be "freed from parental authority of her natural parents as well as from legal obligation and maintenance to them and that from now on shall be, for all legal intents and purposes, known as Angelie Anne Cervantes, a child of herein petitioners and capable of inheriting their estate."
  • Sometime in March or April 1987, the adoptive parents, herein petitioners Nelson and Zenaida Cervantes, received a letter from the respondents demanding to be paid the amount of P150,000.00, otherwise, they would get back their child. Petitioners refused to accede to the demand.
  • As a result, on 11 September 1987, while petitioners were out at work, respondent Gina Carreon took the child from her "yaya" at the petitioners' residence in Angono, Rizal, claiming that she was instructed to do so by her mother. Respondent Gina Carreon brought the child to her house in Parañaque. 
  • Petitioners demanded the return of the child, but Gina Carreon refused, saying that she had no desire to give up her child for adoption and that the affidavit of consent to the adoption she had executed was not fully explained to her. She sent word to the petitioners that she will, however, return the child to the petitioners if she were paid the amount of P150,000.00.
  • Felisa Tansingco, the social worker who had conducted the case study on the adoption and submitted a report thereon to the Regional Trial Court of Rizal in the adoption case, testified on 27 October 1987 before the Executive Judge, Regional Trial Court of Pasig in connection with the present petition. She declared that she had interviewed respondent Gina Carreon on 24 June 1987 in connection with the contemplated adoption of the child. During the interview, said respondent manifested to the social worker her desire to have the child adopted by the petitioners.


ISSUE:
  • Whether or not the adoptive parents, Nelson and Zenaida Cervantes, have custody over the child Angelie Ann.


HELD:
  • Yes. The Supreme Court held that in all cases involving the custody, care, education and property of children, the latter's welfare is paramount. The provision that no mother shall be separated from a child under five (5) years of age, will not apply where the Court finds compelling reasons to rule otherwise. In all controversies regarding the custody of minors, the foremost consideration is the moral, physical and social welfare of the child concerned, taking into account the resources and moral as well as social standing of the contending parents. 
  • The Supreme Court further states that the respondents' relationship is a common-law husband and wife relationship. Their open cohabitation will not accord the minor that desirable atmosphere where she can grow and develop into an upright and moral-minded person. On the other hand, petitioners who are legally married appear to be morally, physically, financially, and socially capable of supporting the minor and giving her a future better than what the natural mother (herein respondent Gina Carreon), who is not only jobless but also maintains an illicit relation with a married man, can most likely give her.
  • Additionally, the minor has been legally adopted by petitioners with the full knowledge and consent of respondents. A decree of adoption has the effect, among others, of dissolving the authority vested in natural parents over the adopted child, except where the adopting parent is the spouse of the natural parent of the adopted, in which case, parental authority over the adopted shall be exercised jointly by both spouses. The adopting parents have the right to the care and custody of the adopted child and exercise parental authority and responsibility over him.




References:

  • Albano, E. (2017).Family Code of the Philippines, pp. 38-39. Quezon City, Philippines: Central Books Supply, Inc.
  • Arellano Law Fovndation. (2019). The LAWPHiL Project. Philippine Jurisprudence. Retrived October 2019, from https://lawphil.net/judjuris/juri1989/jan1989/ gr_79955_1989.html

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