An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (Art. 58, Family Code)


Does the rule prohibiting the hearing of an action for legal separation before the lapse of six months from the filing of the petition preclude the court from acting on an omnibus petition for support and custody?

It is conceded that the period of six months fixed therein is evidently intended as a cooling off period to make possible a reconciliation between the spouses. The recital of their grievances against each other in court may only fan their already inflamed passions against one another, and the lawmaker has imposed the period to give them opportunity for dispassionate reflection. But this practical expedient, necessary to carry out legislative policy, does not have the effect of overriding other provisions such as the determination of the custody of the children and alimony and support pendente lite according to the circumstances. The law expressly enjoins that these should be determined by the court according to the circumstances. If these are ignored or the courts close their eyes to actual facts, rank injustice may be caused.
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Thus the determination of the custody and alimony should be given effect and force provided it does not go to the extent of violating the policy of the cooling off period. That is, evidence not affecting the cause of the separation, like the actual custody of the children, the means conducive to their welfare and convenience during the pendency of the case, these should be allowed that the court may determine which is best for their custody. (Araneta vs. Hon. Concepcion, G.R. No. L-9667, July 31, 1956)