LEGAL COUNSELLING

(Practical Class Exercise)

Family is the basic unit of the society. It starts of course of the marital union
between two persons, the husband and the wife. Thus, under the Family Code of the
Philippines, marriage is being defined as a special contract of permanent union between
a man and a woman entered into in accordance with the law for the establishment of
conjugal and family life.
Anyone who enters marriage should continue believing that their relationship is
always worthy of holding on to. If in the course of the marriage, there are occurrence
of subsequent quarrels, repeated physical violence which tends also to incur moral
pressure and moral damage to either party, then the issue in this case is whether what
law regarding such circumstances or marital relationship would apply to solve or
address the said matter. Thus, there are several options that the aggrieved party of
spouse may avail. Such options are governed by the Philippine laws to wit: if the
aggrieved party does not want to severe the marriage then he/ she could file for a
petition for legal separation; otherwise, if the aggrieved party is the wife, due to
subsequent physical violence and undue moral and mental pressure or damage, she
could file a criminal case charging her husband for the violation of Republic Act 9262
otherwise known as Anti- Violence against Women and their children to protect herself
and her children more possible harm.
The case at bar states that Maria, the wife of Juan, and their children suffer from
Juan, who is a habitual drunkard, repeated physical violence causing physical injuries
and extreme mental torture. The said condition of the Maria and their children lasted
for how many years. With these repeated occurrences of the said circumstances, these
lead to a big humiliation in their neighborhood due to the bruises on Marias face and
body. The children developed fear and moral anxiety and these had affected their
performance in school. Despite of the situation being suffered by Maria and her children
which lasted for how many years, Maria wife does not want to severe their marriage for
she has still regard for her relationship with her husband.
In the Philippine setting, our country observe Catholic principles, thus, marriage
should be given high regard in the society and must be given of much importance. A
struggling couple should exhaust all options to maintain the marital bond between
them. Both parties must respect the rights, duties and obligations of each other.
Dissolving the marriage is only the last remedy that couples could avail if possible.
However, if couples wanted to save the marriage they can resort to possible legal
actions.
Legal Separation is a decree that gives the husband and the wife the right to live
separately from each other. Through this decree, the conjugal partnership of properties
or the absolute community regime of property is dissolved. However, the man and
woman are still considered married. Either of the parties may avail such petition in any
cases when there are frequent and repeated infliction of physical violence of abusive
conducted directed against the petitioner, a common child of the petitioner or due to
the habitual alcoholism of the respondent. This is practical if the petitioner of the said
petition does not want to severe their marriage. On the other hand, if the aggrieved
party is so much of the sufferings of physical abuse, violence, and which lead also to
psychological violence which developed fear and moral suffering that the other party
inflicts against her or their children and she cannot longer take into consideration the
existence of the marital bond, she may file criminal charges against the man or her
husband as the case maybe under the violation of RA 9262. In the case at bar, certain
grounds for both remedies are present. The aggrieved party may either have the option

to file for a Petition for Legal Separation against her husband or on the other hand, a
criminal action charging the husband for the violation of RA 9262.
Under the Family Code of the Philippines, Article 55 provides for the grounds for
a petition for legal separation. Article 55 paragraphs 1 and 5 are the basis for the
petition in the case at bar which states that:

Article 55. A petition for legal separation may be filed on any of the following
grounds:
1. Repeated physical violence or grossly abusive conduct directed against the
petitioner, common child, or a child of the petitioner;
x----------------------------------------------------------------------------------------x
5. Drug addiction or habitual alcoholism of the respondent

On the contrary, RA 9262 provides that violence against women and their
children exist when any act or series of acts committed by any person against a woman
who is his wife, former wife, or against a woman with whom the person has or had a
sexual dating relationship, or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family abode, which result in or
is likely to result in physical, sexual, psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty. The wife could possible invoke such remedy for the acts
punishable for its violation, section 5 paragraphs a, b, c and d are the basis for the
institution of the criminal action, to which it states that:

Sec 5. Acts of Violence Against Women and their Children The crime of
violence against women and their children is committed through any of the
following acts:
a.
b.
c.
d.

Causing physical harm to the woman or her child;

Threatening to cause the woman or her child physical harm
Attempting to cause the woman or her child physical harm
Placing the woman or her child in fear of imminent physical harm

Considering the facts and circumstances of the case at bar, the grounds being
mentioned by the aggrieved party are evident. However, since the wife does not want
to severe the marriage and she has still some regard for her relationship with Juan is it
right and proper to avail the remedy of filing a petition for Legal Separation.
As a law student imbibed with the knowledge of law, I would advice Maria to first
exhaust all other efforts and alternatives before resorting to legal separation. Among
the possible alternatives are marriage counseling, communication or mediation in a civil
setting. And if these were not successfully reviving the marriage then Legal Separation
is the best remedy. Since there is the existence of repeated physical violence or grossly
abusive conduct directed against the petitioner and their common child as well as Juan
goes home habitually intoxicated then such would suffice the petition. Legal Separation
will not dissolve the marriage but rather they will be mandated by law to live

separately. Thus, this would effectively prevent subsequent repeated physical violence
being inflicted to the petitioner and their children and to let the children suffer from fear
and both from mental torture. This will also help the children to remove the fear they
felt and act normally just like no abuse or violence being inflicted upon them. The
decree of Legal Separation would protect not only the interest of the aggrieved party
but the best interests of their children. The wife having high regard for their relationship
through this step, it will help both parties realize their worth for each one of them. This
will give time especially the husband to change for the better and realize the
consequences of his actions. If the spouses should reconcile in due time, Article 65 of
the Family Code provides for the execution of joint manifestation under oath duly
signed by them and shall be filed in court in the same proceeding for legal separation.
Moreover, such reconciliation would warrant that legal separation may then be
terminated and they will again be live together as one family.

Cariaga, Aprilyn Marie Fayda C.

LLB-4