Can a wife compel her husband to come home by court order?

By Atty. Eduardo T. Reyes III

 

“MARRIAGE is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.”

This is how Article 1 of the Family Code defines marriage: it is not a mere ordinary contract, but a “special contract” involving the “permanent union between a man and a woman”.

Although a special contract, marriage is a contract nonetheless such that the Family Code prescribes as well as mandates the rights that the husband and wife are entitled to and their corresponding obligations arising out of their marital status.

Embodied in Article 68 under Title III of the Family Code, the rights and obligations of the married couple are delineated as follows:

 

TITLE III
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

 

Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.

Breaking down these rights and obligations, they may be categorized into three (3) parts which are: (1) to live together; (2) to observe mutual love, respect and fidelity; and, (3) to render mutual help and support.

But are these rights enforceable and the obligations demandable by court action?

On the obligation to live together, for instance, should the husband refuse to come home to his wife, may the wife through an action for specific performance compel him to do so? (An action for specific performance by the way, is a court action resorted to by one party in a contract when the other refuses to perform his/ her obligation).

Philippine jurisprudence had resolved this legal issue in the negative. Thus, it was held that:

“No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or other x x x process. That is a matter beyond judicial authority and is best left to the man and woman’s free choice.” (Erlinda K. Ilusorio v. Erlinda I. Bildner, G.R. No. 139789, May 12, 2000).

Thus, while the statement of the rights and obligations of the spouses under Article 68 of the Family Code would seem mandatory by the way it is couched as it uses the term “are obliged”, and reads: “Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support”; yet, as explained by case law, no court has the judicial authority to compel a spouse to perform these obligations.

But why is this so?  

In the more recent case of Rolando D. Cortez v. Luz Cortez, G.R. No. 224638. April 10, 2019, the Supreme Court also extrapolated on this very same principle about marriage being valid notwithstanding the absence of love as a consideration therefor, viz:

“Petitioner reiterates that he married respondent not out of love but because he was forced to marry her in order to lift the hold departure order made by the POEA and to be able to work abroad as a seaman, hence, he is psychologically incapacitated to comply with the essential marital obligations of marriage. Such claim does not rise to the level of psychological incapacity that would nullify his marriage. In Republic of the Phils. v. Spouses Romero, We held:

That he married Olivia not out of love, but out of reverence for the latter’s parents, does not mean that Reghis is psychologically incapacitated in the context of Article 36 of the Family Code. In Republic v. Albios, the Court held that: Motives for entering into a marriage are varied and complex. The State does not and cannot dictate on the kind of life that a couple chooses to lead. Any attempt to regulate their lifestyle would go into the realm of their right to privacy and would raise serious constitutional questions. The right to marital privacy allows married couples to structure their marriages in almost any way they see fit, to live together or live apart, to have children or no children, to love one another or not, and so on. Thus, marriages entered into for other purposes, limited or otherwise, such as convenience, companionship, money, status, and title, provided that they comply with all the legal requisites, are equally valid. Love, though the ideal consideration in a marriage contract, is not the only valid cause for marriage. Other considerations, not precluded by law, may validly support a marriage.”

In the legal realm, there are zones of privacy that not even the courts of law can reach with their juristic tentacles. Indeed courts cannot dictate on how married couples are to live their lives. The couple’s lifestyle is only for them to design and architect and no law, let alone any court, can prescribe it for them.

The duty to “observe mutual love, respect and fidelity” may be cast in stone in the Family Code but reneging on such duty will not render a marriage void. Otherwise, it would be highly expedient for a married person who changes his/ her mind about marriage to disentangle by learning to un-love his/ her spouse. It would be morally wrong if not socially corrosive.

Love, according to the Supreme Court, “may be the ideal consideration for marriage”, but its absence will not make it void.

Assuredly, not all marriages are made in heaven and as florid as regaled in fairy tale romance and the law is foremost in recognizing this truism.

 

(Atty. Eduardo T. Reyes, III is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).