According to the Law: Legal Separation

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.

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The grounds are very specific, and if the cause of your separation does not fall under these ten grounds, then I’m afraid that you cannot file for legal separation. Please take note the law refers to the “innocent/offended” spouse as the petitioner, which means that if you were the one who committed the ground for legal separation, then you cannot be the one to file the petition for legal separation.

Please take note, though, that a case for legal separation must be filed within five years from the occurrence/discovery of the ground for separation. For example, if you were abandoned in 2010, then you only have until 2015 to file your case. I also think it is worth pointing out that if you are granted a legal separation, and you choose to get back together with your husband, then the decree is set aside and you may continue living together as husband and wife. But if your marriage is annulled and you decide to reconcile, then you will need to get married again. So you might also want to take that under consideration.

Regarding your husband’s rights over your son, your husband will always be entitled to see his child, and to share in the custody if he asks for it even if he has not given him support in the past two years. After all, he is still the legitimate and biological father. In fact, the Supreme Court has held that parents have “the natural right… to care for their children, see to their upbringing and safeguard their best interest and welfare, and this authority and responsibility may not be unduly denied the parents.”

It is always painful to see one or both parents use the child as a bargaining chip to force the other spouse to do something; the worst part is, the child always ends up getting hurt the most when this happens. However, just because you are separated does not mean that your husband can simply forget his parental obligations. If he has the right to still see his son, then your son likewise has the right to be supported by him. Again, I want to emphasize that the issues of custody and support are not dependent on each other. You cannot deprive your husband of custody if he does not give support, and conversely, he is not allowed to stop giving support if he does not get to see the child.  

I hope I answered your question, I want to be free. Good luck and all the best to you and your son.

Atty. Nikki Jimeno

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