Unauthorized agreement

Husbands and wives can dissolve their conjugal partnership and live separately if it is approved by the court. Otherwise, it is void. This is the ruling in this case of the spouses Ely and Lina.

Ely and Lina were married on July 23, 1983. After about 14 years of marriage and begetting four children, they agreed to live separately. They sought the legal advice of Atty. Amelia whether they could legally live separately and dissolve their marriage. So Atty. Amelia prepared a document entitled Kasunduan ng Paghihiwalay and notarized it. Under the kasunduan, the couple agreed: that can live separately and are free to look for other partners in life; that the three older children will be under the custody of Ely while the youngest will be under Lina, but they will all temporarily live with Lina while they were still schooling, and Ely will provide support; that all the household items will be given to Lina; and that properties each of them will subsequently acquire will be their separate property.

Later on however, Elena took possession of most properties they acquired during their union and also the custody of all the children. Ely thus sought the advice of Manny, a fellow employee who is a law graduate. Manny told Ely that the contract they signed was not valid. So Ely and Manny filed a complaint against Atty. Amelia for violation of her oath as a lawyer, malpractice and gross misconduct in office. Was Atty. Amelia liable?

Yes. Atty. Amelia is liable for violation of Rule 1.01 Canon 3 of the Code of Professional Responsibility. A lawyer and Notary Public should not facilitate the disintegration of a marriage and the family by encouraging the separation of the spouses and extrajudicially dissolving their conjugal partnership which is exactly what Atty. Amelia did in this case. The dissolution of the conjugal partnership without judicial approval is void. So Atty. Amelia should be suspended from the practice of law for one year. Her notarial commission is hereby revoked if still existing and she shall also be suspended as a notary public for two years (Espinosa vs. Omana, A.C. (9081, October 12, 2011, 659 SCRA 1).