My husband and I have been married for six years. I found out that he was unfaithful to me during the course of our marriage. As far as I know, he committed infidelities during our second year of marriage and fourth year of marriage. I don’t know if I can trust him with the revelations which I have come to know. I want to know if infidelity is enough reason to file for annulment or just legal separation. If I decide to give the marriage another try, can I file for separation of conjugal property to protect my inheritance in case he cheats on me again?
The infidelity of a spouse is not sufficient to have a marriage annulled or declared as null and void. However, this may constitute a ground for the filing of the innocent spouse for legal separation following the provision of Article 55 of the Family Code which states that a petition for legal separation may be filed on any of the following grounds: xxx (8) Sexual infidelity or perversion; xxx. If you file for legal separation and the same is granted, the court shall, aside from ordering the spouses to leave separately from each other, order for the dissolution and liquidation of the absolute community or the conjugal partnership wherein the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in favor of the common children. As to custody of the minor children, the same shall be awarded to the innocent spouse. Moreover, the offending spouse shall be disqualified from inheritance from the innocent spouse by intestate succession and the provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law (Article 63, Family Code).
As to the separation of property of spouses during the marriage, the same can only be granted upon petition to the court for judicial separation of property. Unless you and your husband would voluntarily agree to separation of your properties, the same cannot be granted if the basis of your petition is the infidelity of your husband because it is not one of the sufficient grounds mentioned under Article 135 of the Family Code, which are as follows: (1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction; (2) That the spouse of the petitioner has been judicially declared an absentee; (3) That loss of parental authority of the spouse of petitioner has been decreed by the court; (4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101; (5) That the spouse granted the power of administration in the marriage settlements has abused that power; and (6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable.
Based on the foregoing, legal separation is best for you because the court, if the same is granted, will order you to live separately from your husband, and order as well the dissolution and liquidation of your property regime and the disqualification of your husband from inheriting from you.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are stated.