Short answer. Either is allowed. The Act says an application may be filed as an independent action, or as incidental relief in a civil or criminal case whose subject matter or issues partake of violence as described in the Act. So an existing case can carry it, if it is that kind of case.
What the law says
It may be filed as an independent action or as incidental relief in any civil or criminal case the subject matter or issues thereof partakes of a violence as described in this Act.
RA 9262, Section 11 — How To Apply. Read the full provision →
The condition sits on the case, not on you
The incidental route is not open in whatever proceeding happens to be running. The sentence qualifies it: the subject matter or the issues of that case must partake of a violence as described in the Act. A case about a boundary line or an unpaid debt does not become a vehicle merely because the same two people are in it. A proceeding in which the conduct is already an issue is a different matter, and that is the question to put to whoever is handling your existing case.
Legal separation is dealt with expressly
The Act singles this out. Where violence as specified in it is alleged in a legal separation case, one of the Family Code's waiting provisions is disapplied, the court is directed to proceed on the main case and its other incidents as soon as possible, and the hearing on any application for a protection order filed by the petitioner must be conducted within the mandatory period the Act specifies. So a legal separation case is not a reason to wait before asking; the Act treats the allegation of violence as a reason to move faster.
Which route to take
An independent action goes to the court fixed by your own place of residence, and to the family court if one exists there. An incidental application rides in the court already handling the case, which may be somewhere else entirely. Weigh convenience against timing: a fresh application starts on its own footing, while an incidental one arrives in a case with a schedule already set. Note too that an application filed with a court counts as an application for both the temporary and the permanent order, whichever route it takes.
The formalities do not change
Either way the application must be in writing, signed and verified under oath by the applicant, and the standard form asks the same things — the parties and their addresses, the relationship between them, the circumstances of the abuse, a request for counsel with reasons, a request that application fees be waived until hearing, and an attestation that no application for a protection order is pending in another court. That last one matters here: if a court is already seized of an application, say so rather than opening a second front.
Related provisions
- RA 9262, Section 10 — Where To Apply
- RA 9262, Section 13 — Legal Representation Of Petitioners
- RA 9262, Section 20 — Priority Of Applications