Dear PAO,
My husband and I have been married for 16 years now. It was about the fifth year of our marriage that I learned of his sexual infidelity. It went on for three years and with different women. I forgave him for the sake of our marriage. We even had a vow renewal for our 10th anniversary. Despite my best efforts to save our marriage, we eventually separated. I emigrated abroad and am now married to a foreigner who knows everything about my past, including my husband. I just want to know if I can still apply for a judicial separation. I plan to return to the Philippines to work on this. I don’t think I can ask for our marriage to be annulled because there doesn’t seem to be any legal reason to do so, so I’m considering a legal separation. If I can’t submit it, can my husband do it? I think he’ll be fine if we both work on our legal separation. Please advise.
Amanda
Dear Amanda,
Legal separation entitles the spouses to live separately, but their marital ties are not severed. It is worth noting that in order to seek legal separation from our courts, the requesting party must demonstrate the existence of a cause under Article 55 of the Philippines Family Code.
You mentioned in your letter that your husband was sexually unfaithful to you for several years. If one considers the mentioned provision, this is one reason for the legal separation:
“Art. 55. An application for separation without separation can be made for one of the following reasons: xxx
(8) Sexual infidelity or perversion; “
However, you cannot apply for a legal separation. On the one hand, the separation for divorce can only be applied for within five years from the time the cause occurs. (Article 57 of the Family Code) According to you, it has been more than five years since your husband committed sexual infidelity. Hence, your right to pursue such action is already mandated.
That being said, you mentioned that you had already forgiven him for these acts of sexual infidelity. This is one reason for the rejection of the application for divorce according to Section 56 of the Family Code:
“Art. 56. The application for separation without divorce is rejected for one of the following reasons:
(1) If the injured party tolerated the offense or act complained of;
xxx “
Although your husband may have a reason for filing a divorce petition considering that you later entered into a bigame marriage (Article 55 (7), Id.), Such a petition will also be denied as our courts have colluded between the parties and will not grant the request if both parties have justified. This is expressly provided for in Article 56 (4) and (5) of the aforementioned law.
“Art. 56. The application for divorce is rejected for one of the following reasons: xxx
(4) If both parties have given a reason for separation;
(5) In the event of agreements between the parties to obtain a separation decree; xxx “
We hope we were able to answer your questions. This advice is based solely on the facts you have provided and our assessment of the same. Our opinion may differ if other facts are changed or clarified.
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