March 2, 2015

Mr Leonardo P. Draman
Purok 1 Brgy Liwayway, Diffun, Quirino

Mr Draman:
Here is the opinion that you requested.
The facts I gather from you and your judicial affidavit before a
Notary Public Atty Manolo M. Beltejar are as follows:
On March 2013, you had executed a judicial affidavit before a
Notary Public Atty Manolo M. Beltejar stating among others your sad
experience with your wife wherein your wife abandons your family home and
allegedly cohabited with another man. That in consequence of this, you and
your two (2) children suffered emotional distress which your wife failed to
comply with her marital obligations as mandated by law.
As per in your judicial affidavit, you and your wife Wilgelmina
Draman contracted marriage on June 8, 1993. During your marriage, you
said that you let her to continue studying and after she graduated in college,
she pursued to work abroad despite your objections fearing that she will be
having a relationship again with her previous boyfriend when she work there
in Hongkong. On June 1997, she went again in Hongkong.
You also said that when she came back here in the Philippines
after two (2) years, she did not frequently live with you and your children
instead she used to go with her friends and came to know later that she has
another man whom she was living and since 2005 up to now, you have no
more communication with your wife.
In your affidavit particularly on page 24, you said that you and
your wife acquired real properties covering the Title OCT No. P1789
measuring 4,7527 square meters and Residential Lot covering Title NO. T22517 measuring 300 sq.meters.
On your judicial affidavit, it is stated that you want to partition
those real properties in favor of your two children the shares of your wife
because you said that reconciliation could never be attained.
From the facts given, you are thinking whether or not your wife
will be held liable for committing Adultery as provided for in the Revised
Penal Code, or those acts of your wife will be a ground for the annulment of
your marriage and that to the dissolution of your community properties as
you had praying for.
In my opinion, your wifes abandonment for more than ten (10)
years with no communication is tantamount to her refusal to comply with her
marital obligations and her alleged cohabiting with a another man may also
be a ground for your filing another case of Adultery and if you will win the
case, you can now file for petition for the separation of your properties.

My opinion is base on the Family Code of the Philippines and the

Revised Penal Code as follows:
Art 36, 134 and 135 (4) of the Family Code of the Philippines
provides:
Art 36- A marriage contracted by any party who, at the time of
the celebration, was psychologically incapacitated to comply with
the essential marital obligations of marriage, shall likewise be
void even if such incapacity becomes manifest only after its
solemnization.
(Art 134)-In the absence of an express declaration in the
marriage settlements, the separation of property between
spouses during the marriage shall not take place except by
judicial order. Such judicial separation of property may either be
voluntary or sufficient cause.
(Art 135 par 4)- Any of the following shall be considered sufficient
cause for judicial separation of property: That the spouse of the
petitioner has abandoned the latter or failed to comply with
his/her obligations to the family.
Art 333 of the Revised Penal Code provides:
Adultery is committed by any married woman who shall have
sexual intercourse with a man not her husband and by the man
who has carnal knowledge of her, knowing her to be married,
even if the marriage be subsequently declared void.
The following are the elements of Adultery:
1. That the woman is married;
2. That she has sexual intercourse with a man not her
husband;
3. That as regards the man with whom she has sexual
intercourse, he must know her to be married.
Carnal knowledge may be proved by circumstantial evidence. The finding
that the married woman have been living together in different places with
her paramour and the fact that they were in scant apparel and sleeping
together in one house is sufficient to show that they had the opportunity to
satisfy their adulterous inclination. On your statements that your wife and
her alleged paramour were going to biglang-liko or in a beerhouse, is
manifestly an indication that she is not contented with you as your husband.
Form the above provisions of the Family Code, it is clear that you
should file a verified petition with the court for the Annulment of your
marriage due to psychological incapacity of your wife under Art 36 of the
Family Code. Your wife may be suffering psychological incapacity because
she is not capable of assuming the essential obligations of matrimony due to
causes of a psychological nature. It is up to you to prove in court that these
manifestations is clearly an indication of her sickness.
On the side of her abandonment since 2005 up to present and that
there was no communication between you and your wife, may be a ground
for your application for Legal Separation as provided for under Art 55 par 10

reads: A petition for legal separation may be filed on the ground of

abandonment of petitioner by respondent without justifiable cause for more
than one (1) year.
With my overview of all the provisions of the Family Code, it seems that
you have a strong convincing evidence that is sufficient for the annulment of
your marriage, for legal separation if you may choose and the filing of a case
against your wife for cohabiting with another man. Consequently, you may
now file a petition for the partition of your properties after judgment has
been rendered in favor of you.
Since all the provisions of law I had cited with you, you can choose to
file for a criminal and/or civil case against your wife and if warrants, thats
the time that you step another for the separation or partition of your
properties.
A word of reservation: My opinion on this matters is cited on the
provisions of law which all the contents of your judicial affidavit is based
legally, however as I have said earlier, you are the one to prove in court all
your allegations thrown to your wife. Honestly, as I had read your judicial
affidavit, you will have a great weight to win in the case.
Kindly inform me if there is a need to extend my service regarding the
furtherance of this matter.

Very Truly Yours,

Atty Leonardo De Sinco