Article 63 of the Family Code: Effects of legal separation

No. This is the biggest difference between legal separation and annulment or a declaration of nullity. Under Article 63(1), "the marriage bonds shall not be severed". The spouses no longer have to live together, but in the eyes of the law they are still husband and wife.

Marrying someone else before the first marriage has been legally dissolved can be the crime of bigamy under Article 349 of the Revised Penal Code. See bigamy in the Philippines and can I remarry after an annulment?. For the differences side by side, see annulment vs legal separation.

The property regime ends. Articles 99(2) and 126(2) say the absolute community and the conjugal partnership terminate when there is a decree of legal separation. The property is then listed, the debts are paid, and what is left is divided, following the steps in Article 102 (absolute community) or Article 129 (conjugal partnership).

The offending spouse does not lose everything. He or she loses the share of the net profits. For the absolute community, Article 102(4) says that for this purpose the net profits are the increase in value between the market value of the community property on the wedding day and its market value when the regime is dissolved. What remains of each spouse's exclusive property is still delivered to that spouse.

The lost share is forfeited under Article 43(2). It goes:

1. to the couple's common children;
2. if there are none, to the children of the guilty spouse by a previous marriage;
3. if there are no children at all, to the innocent spouse.

To learn which property is common, see what absolute community property includes and the rules for couples under conjugal partnership (Article 124).

Article 63(3) awards custody of the minor children to the innocent spouse. But the article adds "subject to the provisions of Article 213". Article 213 says the court takes into account all relevant considerations, especially the choice of a child over seven years of age, unless the parent chosen is unfit. It also says no child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.

In Tan-Andal v. Andal (2021), the Supreme Court recalled its ruling in Pablo-Gualberto v. Gualberto that the "separation of parents" in Article 213 may be legal separation or separation in fact. See also custody of a child under 7.

Not when there is no will. Article 63(4) disqualifies the offending spouse from inheriting by intestate succession, which is inheritance when the person who died left no will. Any provision in the innocent spouse's will that favors the offending spouse is also revoked by operation of law, which means automatically, without a new will.

Article 64 adds more. After the decree becomes final, the innocent spouse may revoke donations he or she made to the offending spouse. He or she may also revoke the offending spouse's designation as beneficiary of an insurance policy, even if the designation was stipulated as irrevocable. The action to revoke a donation must be brought within five years from the time the decree became final.