I want to seek advice regarding legal separation. My husband and I were married in 2008. He knows that I already have a child with my former boyfriend even before we got married. We were okay in the first few years of our marriage but it started spiraling down when my daughter needed to live with us because her father (my former boyfriend) passed away. He would usually come home ill-tempered. I did not mind it at first because I thought he may just be needing some space to adjust since we do not have a child of our own, and quite frankly, he does not want to have a child yet according to him. But what made me consider separating from him is the fact that, just recently, he slapped my daughter. It was the first time he did that, but I am afraid he might do it again. Do you think I can pursue such petition because of that incident?
Husbands and wives are mandated to live together. They are also bound to observe mutual love, respect and fidelity, as well as to render mutual help and support (Article 68, Family Code of the Philippines).
Nevertheless, our laws provide for specific remedies, which may liberate them from such obligations. One of which is legal separation. Under the law, a petition for legal separation may be filed on the ground of repeated physical violence or grossly abusive conduct directed not only against the petitioning spouse, but also against their common child or a child of the petitioner. (Article 55, Id.)
In the situation, which you have presented, you mentioned that your husband just recently slapped your daughter. While the act of slapping may be considered as a form of physical violence, that alone may not be enough to substantiate your ground for legal separation. You must be able to demonstrate that such act or similar thereto is frequently done against you or your daughter. This is in view of the fact that the law requires not only that there be a physical violence. Rather, such physical violence must be recurrent as the adjective “repeated” was used under the law. Also as explained by Dean Melencio Sta. Maria Jr. in his book, Persons and Family Relations Law (Fourth Edition, 2004, p. 327), “x x x Although the physical infliction must generally cause a certain degree of pain, the frequency of the act and not the severity of the same is the determinative factor under this ground. x x x”
If you are unable to prove the recurrence of the abuse or violence, at best you must be able to substantiate that his act goes within the purview of grossly abusive conduct. Dean Sta. Maria, in the same book, elucidated: “x x x “Grossly abusive conduct” has no exact definition and, therefore, is determined on a case to case basis.
Hence, a singular but serious act of “squeezing of neck, pulling of hair and the like without intent to kill” may be included in the phrase (Minutes of the 156th Joint Meeting of the Civil Code and Family Law Committees held on September 27, 1986, p. 11). x x x” (Id.) The same imperatives apply if you wish to use as a basis for your filing of a petition for legal separation the fact that your husband had become ill-tempered. You must be able to establish that his treatment and demeanor toward you and your daughter must be of such nature that is adversely serious, grave or repugnant to come within the purview of “grossly abusive conduct.”
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