Can a husband and wife in a notarized document declare that they are free to marry other persons and they will not file charges against each other?

(Note: Click the graphic to download a free PDF newsletter on this topic. This PDF is for your personal, non-commercial use only; you must not upload it to any website, blog, file-sharing platform, or the cloud.)

Several individuals, either personally or by e-mail, have asked me about situations where the husband and wife have decided to call it quits after a long period of physical separation, physical or psychological abuse, or because of the loss of love for each other.

Instead of going through the judicial process of having their marriage declared null and void, however, the husband and wife have asked a lawyer-notary public (in some instances, barangay officials or even a judge) to prepare and notarize a document where they have declared that both parties are now free to marry other persons and that they will not file charges of adultery or concubinage against each other. The question I have been asked is, Are these documents legally valid?

This kind of document is illegal, immoral, and void because it undermines and subverts the institution of marriage

The Supreme Court has ruled consistently since 1933 (that’s 75 years ago!) that such documents are illegal, immoral, and void because they undermine and subvert the institution of marriage (Panganiban vs. Borromeo 58 Phil. 367). Judges, lawyers and notaries-public who have prepared and signed such documents have been reprimanded severely (in terms of suspension or disbarment) by the Court. And yet, either because of ignorance or misconceptions of the law by the man on the street or by the desire of some lawyers-notaries public to make a fast buck, this kind of agreement and document still seem to be floating around.

Supreme Court ruling in “Albano vs. Judge Gapusan”: Judges, lawyers and notaries-public who prepare this kind of document can be suspended or disbarred

Posted below are excerpts from the 1976 decision of the Supreme Court in the case of “Redentor Albano, complainant, vs. Municipal Judge Patrocinio C. Gapusan of Dumalneg, Ilocos Norte, respondent.” In this case, Judge Gapusan (before his appointment to the judiciary) prepared and notarized a document providing for the personal separation of husband and wife and the extrajudicial liquidation of their conjugal partnership. The Supreme Court censured Judge Gapusan for his act of preparing and notarizing such a document.

Redentor Albano in a verified complaint dated August 18, 1975 charged Municipal Judge Patrocinio C. Gapusan of Dumalneg and Adams, Ilocos Norte with incompetence and Ignorance of the law for having prepared and notarized a document providing for the personal separation of husband and wife and the extrajudicial liquidation of their conjugal partnership and (2) with having allegedly influenced Judge Zacarias A. Crispin of the Court of First Instance of Ilocos Norte in deciding two criminal cases.

In 1941 or five years before his appointment to the bench, respondent Gapusan notarized a document for the personal separation of the spouses Valentina Andres and Guillermo Maligta of Barrio 6, Vintar, Ilocos Norte and for the extrajudicial liquidation of their conjugal partnership.

It was stipulated in that document that if either spouse should commit adultery or concubinage, as the case may be, then the other should refrain from filing an action against the other.

Judge Gapusan denied that he drafted the agreement. He explained that the spouses had been separated for a long time when they signed the separation agreement and that the wife had begotten children with her paramour. He said that there was a stipulation in the agreement that the spouses would live together in case of reconciliation. His belief was that the separation agreement forestalled the occurrence of violent incidents between the spouses.

Albano in filing the malpractice charge is in effect asking this Court to take belated disciplinary action against Judge Gapusan as a member of the bar or as a notary. (He was admitted to the bar in 1937).

There is no question that the covenants contained in the said separation agreement are contrary to law, morals and good customs (Biton vs. Momongan, 62 Phil. 7). Those stipulations undermine the institutions of marriage and the family, "Marriage is not a mere contract but an inviolable social institution". "The family is a basic social institution which public policy cherishes and protects." (Arts. 52 and 216, Civil Code). Marriage and the family are the bases of human society throughout the civilized world (Adong vs. Cheong Seng Gee, 43 Phil. 43; Ramirez vs. Gmur, 42 Phil. 855, 864; Goitia vs. Campos Rueda, 35 Phil. 252, 254; Brown vs. Yambao, 102 Phil. 168).

To preserve the institutions of marriage and the family, the law considers as void “any contract for personal separation between husband and wife” and "every extrajudicial agreement, during the marriage, for the dissolution of the conjugal partnership" (Art. 221, Civil Code). Before the new Civil Code, it was held that the extrajudicial dissolution of the conjugal partnership without judicial sanction was void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs. Linatoc, 74 Phil. 15).

A notary should not facilitate the disintegration of a marriage and the family by encouraging the separation of the spouses and extrajudically dissolving the conjugal partnership. Notaries were severely censured by this Court for notarizing documents which subvert the institutions of marriage and the family (Selanova vs. Mendoza, Adm. Matter No. 804-CJ, May 19, 1975, 64 SCRA 69; Miranda vs. Fuentes, Adm. Case No. 241, April 30, 1966, 16 SCRA 802; Biton vs. Momongan, supra,, Panganiban vs. Borromeo, 58 Phil. 367; In re Santiago, 70 Phil. 66; Balinon vs. De Leon, 94 Phil. 277).

Respondent Gapusan as a member of the bar should be censured for having notarized the void separation agreement already mentioned.

(Emphasis by boldfacing supplied)