The Unfaithful Spouse Can Lose Everything In A Legal Separation Case

The Unfaithful Spouse Can Lose Everything in a Legal Separation Case-Nicolas and De Vega Law Offices Article Image

Effects of Decree of Legal Separation

This article discusses one of the effects of legal separation, which is forfeiture of the share of the guilty spouse to the net profits in the conjugal assets.

The effects of a decree of legal separation are found under Article 63 of the Family Code:

“Art. 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;

(2) 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);

(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and

(4) The offending spouse shall be disqualified from inheriting from the innocent 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.”

In addition, Article 43 paragraph 2 of the Family Code of the Philippines states that “[t]he absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse”.

Thus, when a legal separation decree is issued:

a. both spouses stay married to each other, but are entitled to live separately from each other;

b. the property regime of the spouses is dissolved;

c. custody of the minor children is awarded to the innocent spouse;

d. the guilty spouse cannot inherit from the innocent spouse, and any disposition made in a Last Will and Testament is void, and,

e. the conjugal share of the guilty spouse in the net profits will be forfeited in favor of the common children, or if none, in favor of the innocent spouse.

Share of Guilty Spouse Can be Forfeited as an Effect of Legal Separation

One of the most, if not the most, pervasive effects upon the guilty spouse, of a decree of legal separation, is that he or she will no longer be entitled to receive his or her share in the net profits of the conjugal partnership.

After the legal separation decree is issued, the court will continue to dissolve the conjugal or community property regime. The exclusive properties of both spouses will be tallied and inventoried, deducting any debts or advances made by one spouse from the conjugal funds, debts or obligations of the conjugal partnership, and whatever remains of the properties will be divided to the spouses as their conjugal share.

However, this is not the case with regard the guilty spouse laboring under a decree of legal separation. As expressly provided in Article 63 vis-à-vis Article 43 of the Family Code, his or her share in the conjugal partnership assets will be forfeited in favor of the common children, or in default thereof, in favor of the innocent spouse.

How much of the conjugal share of the Guilty Spouse can be forfeited?

Possibly everything. All of it can be forfeited, in the absence of proof that property is a separate paternal or paraphernal asset.

When there is a decree of legal separation, and the spouses are unable to present evidence that a certain property or properties belong to them exclusively, the law presumes that the entirety of the spouses’ mutual assets are conjugal partnership or community property.

There must be proof that the property forming part of the conjugal assets is separate property of one spouse, excluded in the conjugal or community property, or otherwise brought by one spouse as his or her own, thereby constituting paraphernal or paternal and exclusive property. It is incumbent on the spouse alleging that an asset is his or her own, and not conjugal property. More importantly, this allegation must be coupled with proof.

This is because under Article 116 of the Family Code:

“Art. 116. All property acquired during the marriage, whether the acquisition appears to have been made, contracted, or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved.”  

Moveover, in the case of Spouses De Leon vs. De Leon, G.R. No. 185063, 23 July 2009, the Supreme Court reiterated the presumption that all properties acquired during the marriage belong to the conjugal partnership, unless proved to pertain exclusively to one of the spouses. To wit:

“Such presumption is rebuttable only with strong, clear, categorical, and convincing evidence. There must be clear evidence of the exclusive ownership of one of the spouses, and the burden of proof rests upon the party asserting it.” [Emphasis and underscoring supplied.]

Not only proof, but strong, clear, categorical and convincing evidence must be presented to prove that one spouse has exclusive ownership over a conjugal property or asset.

In the case of Quiao vs. Quiao, G.R. No. 176556, 04 July 2012, the Supreme Court had the occasion to discuss the “net profits” that would be forfeited and held that if both husband and wife have no separate properties and nothing would be returned to each of them, what will be divided equally between them is simply the “net profits”. Thus, in marriages covered by the absolute community of property regime and the spouses have no separate properties, nothing would be left to the guilty spouse since both parties entered into their marriage without bringing with them any property. The same doctrine will apply in marriages covered by the conjugal partnership of gains and the spouses do not have separate properties.

Thus, when the share of one spouse is forfeited under a decree of legal separation, this may pertain to the guilty spouse’s entire conjugal or community property share.

About Nicolas and De Vega Law Offices

If you need help regarding annulment of marriage, declaration of nullity of marriage, legal separation, or have any questions or concerns regarding family law or other civil or criminal law-related issues, we can help you. Nicolas and De Vega Law Offices is a full-service law firm in the Philippines.  You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines.  You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at Visit our website


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