Unenforceable

Husbands and wives can agree to dissolve their conjugal partnership and to live separately. But such agreement even if in writing and duly notarized should be approved by the court in order to bevalid and enforceable. Otherwise, it is void. This is the ruling in this case of the spouses George and Amy.

George and Amy were already married for 14 years and had four children when they agreed to live separately.  They sought the legal advice of Atty. Nelia on how they could legally live separately and dissolve their conjugal partnership. In response, Atty. Nelia prepared a document entitled “Kasunduan ng Paghihiwalay” and notarized it.

Under the Kasunduan, the couple agreed: (a) that they can live separately and are free to look for other partners in life; (b) that the three older children will be under the custody of George and the youngest will be under the custody of Amy while they were still schooling; (c) that George will provide support; (d) that all the household items will be given to Amy; and (d) that the properties subsequently acquired by each of them will be their separate property.  

Later on however, Amy took possession of most of their conjugal properties or the properties they acquired during their union, as well as the custody of all the children. George thus sought to enforce their Kasunduan. But George was advised by a fellow employee who is a law graduate, that the contract they signed cannot be enforced because it is not valid if it is not approved by the court. Was he correct?

 Yes. The agreement for the dissolution of the conjugal properties and the separation of the spouses George and Amy is void if not approved by the court. Before the couple can enforce the agreement judicial approval must first be obtained. Indeed, for preparing such a document and notarizing it, Atty. Nelia may be held 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 extra-judicially dissolving their conjugal partnership. This is exactly what Atty. Nelia did in this case. So in this case Atty. Nelia was even suspended from the practice of law for one year upon petition of George. Her notarial commission was revoked if still existing and she was also suspended as a notary public for two years. This is the ruling in Espinosa vs. Omana, 659 SCRA 1, October 12, 2001.

Notice: The Christian Family Movement of the Philippines (CFM) is inviting the public and all families to its third “Takbo Pamilya Takbo.” This is a three-kilometer “Fun Run Crusade Against Domestic Violence of Women and Children.” It will be held at the University of the Philippines (UP) Diliman Academic Oval on Sunday, Nov. 29, 2015 starting at 5:30 a.m. Registration fee is P300 with free singlets, loot bags and gifts. You may register on site or  visit the CFM website…www.cfmphil.org. Registration form may also be obtained at tinyurl.com/cfmrun2015. See you with your families, relatives and friends!

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