Abandoned spouse can file petition for separation of property

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Persida Acosta

Persida Acosta

Dear PAO,
My sister worked in Subic while her husband, my brother-in-law, stayed with their children in their family home in Manila. She would only go home in Manila on weekends and holidays. My sister was frugal because she wanted to save up for her family, which she eventually did. She was also able to purchase a motorcycle and the small piece of land next to their house where she planned to put up a small sari-sari store. She thought that everything was going well, but then she noticed some changes in my brother-in-law, and last June, he left home. She has not heard from him since and it was only through mutual friends that she learned that my brother-in-law has another woman. My sister wants to know if she can file a case for concubinage against my brother-in-law .Can she also get a formal authority to manage their property and exclude him, or does she need to wait for the court to decide on the complaint for concubinage? She is worried that my brother-in-law might use the family savings or sell their property to sustain his illicit affair, given that he has no permanent job. Please advise.
Rob

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Dear Rob,
Concubinage is considered a crime under our jurisdiction and it is penalized under our law. Article 334 of the Revised Penal Code of the Philippines states: “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. x x x The concubine shall suffer the penalty of destierro.”

Accordingly, your sister must be able to establish that her husband and the latter’s paramour are, in fact, cohabiting. We wish to emphasize that such cohabitation is not only one of casual or occasional kind. If your sister truly intends to pursue filing a complaint for concubinage, she must clearly show that her husband and the latter’s paramour are living together as husband and wife.

Insofar as obtaining an authority to solely manage their community property, your sister may file the appropriate petition in court in order to protect her interest, as well as her children’s. It is not necessary for her to wait for the decision of the court, should she pursue the complaint for concubinage. This is so considering that her husband appears to have abandoned them already, given that your sister has not heard from him since he left last June.

It is explicitly stated under Article 101 of the Family Code of the Philippines that: “If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations.

A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.”

We hope that we were able to answer your queries. Please be reminded that 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 dearpao@manilatimes.net

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