• Agreement of married couple to live separately is void

    Persida Acosta

    Persida Acosta

    Dear PAO,
    My wife and I have agreed in a written document that we will live separately and we are free to have an intimate relationship with another partner. I just want to know if this is valid. I have a girlfriend now and I can’t wait to live with her.

    Dear Joed,
    As defined under the Family Code of the Philippines, marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code (Article 1, Family Code of the Philippines).

    Clearly, parties to a marriage cannot just agree on anything that would undermine the existence of their marriage. As marriage is a special contract, they are bound by what the law says. Although before the union is solemnized, the law allows them to agree on what their property regime will be, other than this, no agreement between the parties may be entered into concerning the nature, consequences and incidents of marriage.

    Thus, the agreement you entered into with your wife is null and void, it being contrary to law. Cohabiting with another woman other than your wife is strictly prohibited under the Revised Penal Code of the Philippines as it constitutes concubinage which is punishable by imprisonment. Likewise, a married woman having a sexual relationship with a man not her husband may give rise to the filing of adultery against her which is also punishable by imprisonment.

    In addition, the Family Code of the Philippines enjoins husband and wife to observe their marital obligations to each other. Article 68 thereof provides:

    “Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.”

    Clearly, an agreement contrary to this provision is null and void. Lastly, marriage being the foundation of the family is well protected by law and any agreement inimical to the existence and growth of the family shall have no legal effect. This is explicitly provided under the Family Code of the Philippines, to wit:

    “Art. 149. The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect.”

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.

    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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    1 Comment

    1. It is contrary to Law but not to common sense. The agreement maybe void but who will complain? Adultery is a private crime meaning only the 2 spouses can sue each other but since there is an agreement even a non notarized one is valid between the 2.