Dear PAO,

Josh and I got married in 2019. At first, we had a happy marriage. However, when he lost his job during the pandemic, he became an alcoholic and violent. Whenever his demands weren’t met, he would punch, kick, and even hit me with a stool. I researched and discovered that I could file a case for legal separation. But my question is, if I file for legal separation and it is granted, will our marriage be dissolved? And if so, will Josh have custody of our children because he earns a higher salary?

Grant

Dear Grant,

According to Articles 63 and 213 of the Family Code of the Philippines:

“ARTICLE 63. The decree of legal separation shall have the following effects:

“(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; xxx

“(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of

Article 213 of this Code; xxx.”

“ARTICLE 213. In case of separation of parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age unless the parent chosen is unfit.”

Based on Section 2, Article XV of the 1987 Constitution, the State has the obligation to protect marriages because it is considered the foundation of the family. However, we cannot deny the fact that there are certain marriages where the husband or the wife suffered abuse from their spouse. Thus, one of the remedies given by law to protect the offended spouse from further abuse is to file a legal separation case.

However, it is important to know the possible effects of legal separation. It is clear from the aforementioned law that the decree of legal separation would only allow the parties to live separately from each other. However, the said decree cannot sever the marriage between the parties. In other words, they would remain married to each other. Thus, they cannot contract a second marriage because their current marriage is still subsisting.

As to the custody of children, if there is a decree of legal separation ordered by the court, as a general rule, custody of minor children is given to the spouse who did not commit the ground for legal separation, also called the innocent spouse. However, this is not an absolute rule because in custody cases, the court would take into account all the relevant considerations that would protect the best interest of the child.

In your case, assuming that a decree of legal separation will be granted in your favor, this will entitle you to live separately from Josh. However, your marriage with him would not be severed. As to the custody of your children, the court may award it to you if they consider you the innocent spouse. But you should remember that this is just a general rule because the issue of custody will be decided by the court keeping in mind the best interest of your minor children.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]