I have been married to Elena for almost eight years now. Last year, I discovered that she was having an affair with her co-worker. Confrontation ensued and we decided to separate ways. She proposed that we will make a compromise or an agreement of separation, which includes the suppor tand custody of our 9-year-old son. Is this proposed agreement or compromise in accordance with our law?
Contract is defined under Article 1305 of the New Civil Code of the Philippines, as a meeting of the minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service. The parties to a contract may agree on anything subject to the limitations found under Article 1306 of the same law. Under the said provision of law, the contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy.
A compromise is also a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. (Article 2028, Id.) Correlative thereto, Article 2035 of the aforesaid law also provides that:
“No compromise upon the following questions shall be valid:
The civil status of persons;
The validity of a marriage or a legal separation;
Any ground for legal separation;
The jurisdiction of courts;
The abovementioned provisions of law are the limitations that shall be observed by the parties to a contract or compromise. The proposed agreement by your wife, with respect to your separation, is not valid because a ground for legal separation cannot be a subject of compromise. You and your wife may nevertheless agree on the support of your child, but not on future support.
With regard to parental authority, it shall be exercised jointly by the father and the mother. In case of disagreement, the husband’s decision shall prevail. However, under Article 213 of the Family Code of the Philippines, it is stated that:
“In case of separation of the 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 a child over seven years of age, unless the parent chosen is unfit.
“No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.”
In your situation, the custody of your son may be the subject of an agreement or compromise, provided the same will be for the child’s best interest. Consideration must be taken into account as to the choice of your son, since he is already nine years of age, unless the chosen parent is unfit.
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 firstname.lastname@example.org