Dear PAO,
May I know the meaning of the so-called cooling-off period in legal separation cases? Does it also apply to declarations of nullity in marriage cases?
Glo
Dear Glo,
The cooling off period in legal separation cases is the mandatory period of six months, which must elapse before such a case is tried, and the same is reckoned from the filing of the petition. To elucidate this point, allow me to lead your attention to pertinent laws and jurisprudence.
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Succinctly, Articles 58 to 59 of Executive Order 209, otherwise known as the Family Code of the Philippines, read:
“Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition.
“Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable.” (Emphasis and underscoring supplied)
The foregoing provisions of law serve as the legal basis of the rule echoed in AM 02-11-11-SC, dated March 4, 2003, which is the Supreme Court Rule on Legal Separation. In Section 8 thereof, the rule dictates that pre-trial shall be set not earlier than six (6) months from the date of the filing of the petition, viz.:
“Section 8. Pre-trial. –
“(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.” (Emphasis and underscoring supplied)
In connection with the foregoing, as early as the case of Pacete vs. Carriaga (GR L-53880, March 17, 1994), penned by Associate Justice Jose Vitug, the Supreme Court has this to say:
“Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that an action for legal separation must ‘in no case be tried before six months shall have elapsed since the filing of the petition,’ obviously in order to provide the parties a ‘cooling-off’ period. In this interim, the court should take steps toward getting the parties to reconcile.” (Emphasis and underscoring supplied)
In sum, the six-month “cooling off” period is intended to give the parties time to “cool off” and possibly come up with a reconciliation. This is independent of the legal requirement indicated in the subsequent provision of the Family Code stating, “No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable.” Precisely, as quoted above, the court cannot schedule the pre-trial conference within six months from the date of filing of the petition.
Regarding your second question, please be advised that the cooling-off period is not required in the declaration of nullity of cases. Apart from not being reiterated by the law in chapters covering void and voidable marriages, AM 02-11-10-SC, dated March 4, 2003, otherwise known as the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, did not provide for the same rule regarding a prior six-month abeyance period before pre-trial, thus:
“Section 11. Pre-trial. –
“(1) 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. x x x.” (Emphasis and underscoring supplied)
Therefore, unlike in legal separation cases where it is required to have a six-month cooling off period, there is no similar rule in the declaration of nullity of marriage cases, and as provided in the lifted provision of the rule, the court shall set the pre-trial after the last pleading has been served and filed.
We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated on.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]
