“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]