Q: "Good day Atty Real! My ex-husband and I separated after one year and a half of marriage, largely because of his infidelity. I caught him having an affair many times, and he didn't deny it. After one week of our separation, he was living-in with his partner. I didn't interfere because I wanted him to be happy even if he cheated on me.
After five years, I found a partner with whom I now have a daughter. Which last name should my daughter use? Is it my maiden name or my live-in partner’s? I know that my daughter is illegitimate but I want her named after her dad even if my marriage has not been annulled yet. The annulment process is so expensive and I can’t afford it as I am just a call center agent and my salary is just enough for everyday living. Please help." - RV
A: Our Family Code provides for the sanctity of marriage. As a contract, it cannot be terminated by either party unless there is sufficient ground for the court to declare the nullity of such marriage. Article 40 of our Family Code provides :
"The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void."
Separation in fact is not a ground for annulment of marriage.
Cohabitation with another man during the existence of a valid marriage is not a ground for annulment of marriage. Instead, it can be a good ground for adultery.
Children born outside of a legal marriage are illegitimate children. As such, they take on the surname of the mother unless the biological parent makes a public declaration that he is the father of the child. However, this public declaration by the father of the child may not be a good alternative to take as it further proves the existence of your adulterous relationship.
Unless there is such court declaration dissolving your first marriage, your cohabitation with another man is not secured under our Philippine laws. You need to engage the services of a lawyer to help you through the process of annulment. Your lawyer can validate if you have a good ground to petition the court to declare the nullity of your marriage.