Unclean Hands:
Reconsidering the Rule Where both Spouses have Given Ground for Legal
Separation as a Ground to Deny a Petition for Legal Separation.
by
Francis Hernani Lu Fabia
Submitted to
Atty.Ariola
25 February 2011
I.
Introduction
Background of the Study
Article 1 of the Family Code of the Philippines provides that:
Marriage is a special contract of permanent union between a man and a
woman entered into in accordance with law for the establishment of
conjugal and family life. It is the foundation of the family and an
inviolable social institution whose nature, consequences, and incidents
are governed by law and not subject to stipulation, except that marriage
settlements may fix the property relations during the marriage within
the limits provided by this Code
However, the state allows annulment of marriage or legal separation to modify
the relationship between husband and wife. In annulment, “the vinculum is not
dissolved nor severed because such a decree does not dissolve the marriage nor affect
the marital status of the spouses. It merely enables the spouses to live apart from each
other.1 Legal separation or relative divorce is a decree made by a competent court that
enables a spouse to have a bed-and-board separation from his or her spouse.2
In the Philippines, legal separation is a remedy for married couples who want to
alter their marital relations based the grounds enumerated in Article 55 of the Family
Code of the Philippines. The grounds for Legal Separation are as follows:
1
2
MELENCIO S. STA. MARIA, JR., PERSONS AND FAMILY RELATIONS LAW 364 (5th ed.).
Ibid.
1
The Family Code of the Philippines [FAMILY CODE], Executive Order No. 209,
(1988).
Art. 55. A petition for legal separation may be filed on any of the following
grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the
petitioner, a common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change
religious or political affiliation;
(3) 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;
(4) Final judgment sentencing the respondent to imprisonment of more than six
years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
However, Article 56 of the Family Code identifies certain defenses that would
merit a denial of a petition for legal separation:
The petition for legal separation shall be denied on any of the following
grounds:
(1) Where the aggrieved party has condoned the offense or act complained of;
(2) Where the aggrieved party has consented to the commission of the offense
or act complained of;
(3) Where there is connivance between the parties in the commission of the
offense or act constituting the ground for legal separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain decree of legal
separation; or
(6) Where the action is barred by prescription.
Paragraph four (4) enunciates that legal separation is granted only to the
innocent spouse who has not consented to nor condoned the marital offense.3 This rule
is based on the equitable maxim that “he who comes into the court must come with
clean hands” and the principle of in pari delicto. Thus, “the plaintiff-spouse cannot
invoke the guilt of the other if such plaintiff-spouse is guilty of giving grounds for legal
separation”.4
3
4
ERNESTO L. PINEDA, LEGAL SEPARATION IN THE PHILIPPINES (1994 ED.).
MELENCIO S. STA. MARIA, JR., PERSONS AND FAMILY RELATIONS LAW 364 (5th ed.).
2
Paragraph four (4) at first glance, seems to be an equitable rule because of the
concept of in pari delicto. However, after analysis, this rule seems to be oppressive
because it fosters a situation where the husband and wife are forced to live together
within a relationship of distrust.
More so, the law was phrased in such a way that just by giving a ground for legal
separation, the court shall deny the petition for legal separation without even proving
the existence of such ground. The effect is that it may be used by a spouse as a perpetual
obstacle for the other spouse to legally separate from the former.
“Preventing the spouses to legally separate because they are both at fault, the rule
inevitably forces two people to live together even though the bond or the relationship
that made them marry each other has already collapsed.”5
Article XV Sec. 2 of the 1987 Constitution “recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen its solidarity and actively
promote its total development.” Article XV Sec. 3 of the Constitution also provides that
“Marriage, as an inviolable social institution. Is the foundation of the family and shall be
protected by the state.” A situation where a family is forced to live together in distrust or
even hate is not a family that our Constitution seems to protect. This hardly seems to be
what the framers of our laws seek to protect.
Statement of the Problem
This thesis will re-examine Section 56, paragraph four (4) of the Family Code as a
ground for denying a petition for legal separation. Although the State has the power to
regulate the circumstances behind marriage relationship, this provision may result in an
5
ROMAN P. MOSQUEDA, MARRIAGE AND ITS DISSOLUTION HANDBOOK 274-277 (1977)
3
unfavorable marriage situation not only for the spouses but also to the family. Imagine
that a physically abused wife will not be able to legally separate from her husband
because of her sexual infidelity. Such a situation may be harmful to the wife and the
family.
Thesis Statement
Section 56 of the Family Code of the Philippines provides that where both parties
have given a ground for legal separation, the court shall deny the petition for legal
separation.
Section 56 paragraph four (4) of the Family Code of the Philippines should be
removed since it fosters a marital relationship contrary to the idea of marriage
envisioned by the framers of the Constitution, its effect may be detrimental to the
Filipino family, which the State protects and the spouses may abuse.
Objectives

To analyze the rationale behind Section 56 Paragraph four (4) of the Family Code
of the Philippines.

To determine whether such provision is contrary to the Constitution

To determine whether equally guilty spouses for acts mentioned in Section 55 of
the Family Code should be allowed to legally separate.
4
Significance of the study
Legal separation is a remedy provided by law to protect not only the sanctity of
the family but also to protect individuals from a disruptive and potentially dangerous
marriage. The Philippine Laws only provides two (2) methods by which the spouses may
alter their relationship, the first is annulment, and the second is legal separation.
Recrimination or equal guilt, as a ground to deny the petition for legal separation, may
render the remedy of legal separation nugatory.
The significance of this study is to protect the rationale behind legal separation. The
law allows spouses to terminate their bed-and-board relationship due to certain harmful
conduct of a spouse.
In addition, our Constitution protects the family as a basic social unit. Laws should
likewise protect the family and should not lead to situations where it may destroy it.
Scope and Limitations
This study primarily focuses on Section 56, Paragraph four (4) of the Family Code
of the Philippines. It shall discuss the rationale behind the provision and compare it
with the idea of the family of the framers of the Constitution. This paper shall dwell into
the concept of the in pari delicto doctrine and determine whether such doctrine is
applicable to legal separation.
This thesis will not dwell on the other grounds to deny a petition for legal
separation. What the researcher shall analyze is the ratio and the legal implications
behind the rule of recrimination as a ground in denying legal separation petitions.
5
Definition of Terms
Legal Separation – “A partial or qualified divorce by which the parties were separated
and allowed or ordered to live apart, but remained technically married. Also
termed as divorce a mensa et thoro; judicial separation; separation from bed and
board; limited divorce”.6
Recrimination – “In a divorce suit, a countercharge that the complainant has been
guilty of an offense constituting a ground for divorce. When both parties to the
marriage have committed marital misconduct that would be grounds for the
divorce, neither may obtain a fault divorce. Recriminations are now virtually
obsolete because of the prevalence of no-fault divorces.”7
In pari delicto – “In equal fault; equally culpable or criminal; in a case of equal fault or
guilt.”8
6
Black’s Law Dictionary, 9th ed (2009)
Ibid.
8
Black’s Law Dictionary, 6th ed (1990)
7
6
CHAPTER 2
Logic Behind the Law
1. Rationale behind the law.
2. The logic behind the In Pari Delicto Doctrine
Fosters a marital relationship contrary to the idea of marriage by the
framers of our constitution.
1. What is the idea of marriage by the framers of the 1987 Constitution
2. The Filipino Marriage
Effects may be detrimental to the Filipino Family.
1. Article XV Sec. 1: the state shall strengthen the Filipino family’s solidarity and
actively promote its total development.
2. What may be the effects of a trapped marriage to
a. The spouses
b. The family
c. Others
3. The effects may be detrimental to the Filipino family.
Prone to Abuse
1. A spouse may use such provision as a perpetual shield to grant a petition for legal
separation.
Recommendation
7
Article 56 of the Family Code of the Philippines which states that “where both parties
have given ground for legal separation,” a petition for legal separation should be
denied is an unfair rule and as such it should be removed from the grounds for
denying a petition for legal separation. Although this rule on equal guilt or recrimination
is based on the equitable rule of in pari delicto, it cannot be denied that the family is the one
that is compromised and greatly affected. With this rule, Filipino families find themselves in
a ‘trapped scenario’ wherein both spouses even if both guilty of grounds enunciated in
Article 55 of the Family Code are forced to live together in an atmosphere of hate and
distrust. If both the husband and the wife have committed acts such as repeated physical
violence against each other, then wouldn’t it be fair and justiceable to allow them to take
refuge in the law, be legally separated, and stop from destroying each other? The author is of
the opinion that it is about time to allow spouses—even if both guilty—to be legally
separated.
Bibliography
8
BLACK’S LAW DICTIONARY (2009 ED.).
LOPEZ, JIM V., THE LAW ON ANNULMENT OF MARRIAGE (2001).
MOSQUEDA, ROMAN P., MARRIAGE AND ITS DISSOLUTION HANDBOOK (1977).
PINEDA, ERNESTO L., LEGAL SEPARATION IN THE PHILIPPINES (1994 ED.).
STA. MARIA, MELENCIO S., JR., PERSONS AND FAMILY RELATIONS LAW 364 (5th ed.).
The Family Code of the Philippines Executive Order No. 209, (1988).
The Philippine Constitution (1987).
9