Abandonment, Subsequent Relationship and Legal Separation

“I am separated from my wife for 5 years now. It’s a separation in fact and not really a legal separation. Can I file a petition for legal separation and if the petition is granted, can I live with another woman without marriage?” This question was already answered in a previous Q&A and the usual recourse is to point to that post. Nevertheless, it might be helpful to centralize and expand the discussion.

This is a two-tier question. The first part requires a discussion on the grounds for legal separation, while the second part relates to the effects of legal separation.

Abandonment as ground for legal separation

The actual separation of the spouses, also called de facto separation or separation in fact, does not automatically support a petition for legal separation. The related ground is abandonment and it does not simply refer to de facto separation.

Abandonment is found in paragraph 10 of Article 55 of the Family Code. Article 55 enumerates the grounds for legal separation. It reads in full:

Art. 55. A petition for legal separation may be filed on any of the following grounds:

(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, 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 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.

For purposes of this Article, the term “child” shall include a child by nature or by adoption.

It’s readily apparent that it’s not only about the period of separation. This is only one of the the requisites. There must be: (a) abandonment; (b) the abandonment must be without justifiable cause; and (c) the duration must be more than a year.

Effect of legal separation

Legal separation, unlike annulment, does not dissolve the marital bond. A decree of legal separation allows the spouses to live separately, among other consequences, but the vinculum or marital bond legally remains. In other other words, the spouses cannot remarry and technically could be charged with bigamy (if they indeed get married again) or adultery or concubinage (even if they don’t get married but get into another relationship). See also Length of Time when Husband and Wife are Separated Does not Automatically Nullify Marriage.

[Reference: Partosa-Jo vs. Court of Appeals, G.R. No. 82606, 18 December 1992]

46 comments

  1. my husband abandoned us with our two kids 2 years. he had another woman and what will i do to make our marriage annuled? he is missing till now.

  2. Hello Attorney,

    My bosses has a adopted child but not legally adopted, he is under their care by since his in the womb of his biological mother until now his 10 years old already. Now we are planning to get him a passport and one of the requirements for it is the “Court Order of Abandonment” will you please explain to us how to get the said documents.

  3. Hi,

    I left my husband in 2008 with my then 6 months old daughter because he beat me up heavily. I’ve been raising my daughter by myself without any support from the husband who knew where I was staying when I left… it has almost been 10 years since I have seen him. What are the best options for me. Can this be grounds for annulment?

    Please advise.

    Regards,
    Heidz

  4. Hi attorney, I need an advice with my situation. I was married with an irish guy back 2011, and when he got back to his country he cheated on me several times without me knowing ,and when i found out i broke him up..and since then i dont communicate with him. But then my problem is I wanted to use my father’s last name in some of my documents and not his..Whats the best option for me Sir?
    Pls I need a help with this.
    Thank u in advance!

    Best Regards,
    Shae

  5. Dear Atty.,

    May tatlo po akong anak, hiniwalayan ko po ang asawa ko dahil sa mga paratang niya na marami akong kabit at ang mga bata ay hindi sa kanya. Hindi rin po sa nagbibigay supurta sa mga bata. Ngayon po, gusto niya kunin ang mga bata dahil may karapatan daw po sya sa mga bata. Pwedi po bang kasuhan ko sya ng Abandonment. Mapawalang bisa po ba ang kasal namin at kung mapalitan po ang apelyedo ng mga bata dahil hindi din nya inaangkin pero gusto nyang kunin. Paki advys po sana. Tnx

  6. Hi attorney. Before leaving you a question i just wanted to give you a brief story of my situation right now. My boyfriend is married with another woman but they are already separated maybe for more than 5 years and only contacting to the other party just for the child support. Now i wanna ask if the legitimate wife can still sue my boyfriend for concubinage or having relationship with me even they are already separated and not living together? *their separation is just an agreement but not legal sepation

    1. Art. 334 of the Revised Penal Code provides:

      Concubinage. — Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.

      The legal wife may file a case against your boyfriend and you for Concubinage if the following elements of concubinage are present:

      a. That the man must be married;
      b. That he committed any of the following acts:
      1. Keeping a mistress in the conjugal dwelling
      2. Having sexual intercourse under scandalous circumstances with a woman who is not his wife
      3. Cohabiting with her in any other place
      c. That the woman knows him to be married.

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