Dear Atty. Angela,

My wife and I have not been in good terms for over a year now. Recently, I found out that she is having an affair with her officemate. I confronted her about it and she admitted. Since we have already lost feelings, we agreed to separate but remain married for the sake of our children. We thought of making an agreement or kasunduan where we enter into a settlement consenting that we could pursue our own partners without any of us filing a case against each other. We will have it notarized so it could be binding to third parties. Is this legally acceptable?

Mario

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Dear Mario,

Under the law, this Kasunduan or marriage arrangement is not legal nor acceptable. An agreement entered into by a married couple, consenting to and giving freedom to either of them to seek any partner is void even when it is notarized.

In the case of Acebedo v. Arquero, A.M. No. P-94-1054 (2003), the Supreme Court held that any form of Kasunduan has absolutely no force and effect on the validity of the marriage between spouses. Any private agreement affecting marriage that is not in accordance with the Family Code would not have any legal effect.

Article 1 of the Family Code provides that marriage is "an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation." It is an institution of public order or policy, governed by rules established by law which cannot be made inoperative by the stipulation of the parties.

Thus, any stipulation by made by spouses that would modify or alter their marital relations, especially to the effect of making legal amorous affairs or cohabiting to a person not your spouse, is entirely void for being contrary to law, good morals, good customs and public policy.

I hope to have enlightened you on the matter.

Atty. Angela Antonio