Short answer. The innocent spouse. Article 63 awards custody of the minor children to the innocent spouse as one of the decree's effects, subject to the Family Code's other rules on custody of young children. The community or conjugal property is also dissolved, and the offending spouse loses certain inheritance rights.
What the law says
The custody of the minor children shall be awarded to the innocent spouse
Family Code, Article 63 — Effects of the Decree of Legal Separation. Read the full provision →
What the law says
The decree of legal separation shall have the following effects
Family Code, Article 63 — Effects of the Decree of Legal Separation. Read the full provision →
Custody goes to the innocent spouse as a stated effect of the decree
Article 63 answers your question as one of several listed consequences that automatically follow a decree of legal separation. The decree of legal separation shall have the following effects — and among them, the custody of the minor children shall be awarded to the innocent spouse. This is not something either spouse has to separately petition for once the decree is granted; it is written into the article as a direct legal effect of the decree itself.
This award is still subject to other custody rules
The article does not give the innocent spouse an unqualified, absolute claim to custody in every circumstance — it expressly makes the award subject to the Family Code's other provisions specifically governing custody of young children. Those other rules can affect how the general award to the innocent spouse actually plays out in a given case, so the innocent-spouse default in this article should be read together with, not apart from, that broader framework.
Property and inheritance consequences accompany the custody award
The custody award sits alongside other listed effects of the same decree: the community or conjugal property regime is dissolved and liquidated, with the offending spouse forfeiting any share of the net profits; and the offending spouse becomes disqualified from inheriting from the innocent spouse by intestate succession, while any provisions favoring the offending spouse in the innocent spouse's will are revoked by operation of law. These consequences all flow from the same decree together with the custody award, reflecting how comprehensively a legal separation decree reshapes both the family and the spouses' property and succession rights.
What this means for a parent going through legal separation
If you are the innocent spouse in a legal separation, Article 63 gives you the default position on custody of your minor children once the decree is issued, though the specific circumstances of the children and any other applicable custody provisions can still shape the outcome. This article does not itself detail visitation arrangements or the procedure for addressing custody disputes that arise afterward, since those depend on rules and proceedings the article does not spell out.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- Brigido B. Quia vs. Rita C. Quiao, et al, G.R. No. 176556, July 4, 2012 — read the decision on LawPhil →
- V. Maquilan vs. D. Maquilan, G.R. No. 155409, June 8, 2007 — read the decision on LawPhil →
- Elenita V. Macalinao, Kenneth V. Macalinao and Kristel V. Macalinao vs. Cerina, A.K.A. Cerena N. Macalinao and Cindy N. Ma, G.R. No. 250613, April 3, 2024 — read the decision on LawPhil →