Q: I have been physically separated from my husband for almost 2 years now. We have a son but I have not received any support from him since then, and now I would like to explore my options. How do I become legally separated from him? If it is granted, will he still have rights over our child?
I want to be free
A: Hello, I want to be free! I applaud you for having the courage to raise your son on your own, especially because separating from your husband must have been very difficult as is.
When you say that you want to be legally separated from him, do you mean that you simply want to file for legal separation, or do you want to have your marriage to him completely annulled? This distinction is important because they are two completely different things with very different consequences.
A legal separation, once granted, shall have the following effects: (1) it will entitle the husband and wife to live separately from each other; (2) it will dissolve and liquidate the communal property, but the spouse who caused the separation shall forfeit his right to share in the net profits earned by the conjugal property; (3) the custody of the minor children shall be awarded to the “innocent” spouse (meaning, the spouse who was not the cause of the separation); and (4) the offending spouse shall be disqualified from inheriting from the innocent spouse, whether by will or by operation of law. However, you shall still be considered as married to each other, and you are both prohibited from remarrying. Also, a petition for legal separation may only be filed on the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner (the spouse filing the petition for legal separation), a common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(3) Attempt of respondent (the offending spouse or the spouse who gave ground/s for the separation) to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.