Short answer. Three months. A spouse who has left the conjugal dwelling for three months, or who has given no information about his whereabouts for that period, is prima facie presumed to have no intention of returning — which is what makes the leaving abandonment rather than an absence.
What the law says
A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning.
Family Code, Article 128 — Abandonment and Failure of Obligations. Read the full provision →
What the law says
The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.
Family Code, Article 128 — Abandonment and Failure of Obligations. Read the full provision →
Three months, counted two ways
Article 128 fixes the period: the spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. Note the or. Three months away is enough on its own, and so is three months of silence — a spouse who is known to be working elsewhere but has cut off all contact falls within the second limb even though everyone knows roughly where he is.
What the three months proves, and what it does not
The presumption goes to intention only. Abandonment under the article is leaving without intention of returning, and intention is a state of mind nobody can photograph, so the Code lets three months stand in for proof of it. It is prima facie, which means rebuttable: the absent spouse can appear and show a reason for the absence and a plan to come back. And the period is not a waiting requirement in disguise — it does not follow that nothing can be done in the first three months, only that after them you do not have to prove what the other spouse was thinking.
Abandonment is only one of the two triggers
The remedies in the article are open both to a spouse who was abandoned and to one whose spouse fails to comply with his or her obligation to the family — obligations the article defines as marital, parental or property relations. That second route has no three-month period attached to it, because it is not about absence. A spouse still living at home who has stopped supporting the family, or who is wasting the partnership property, engages the same provision, and the aggrieved spouse does not have to wait for anybody to leave.
Date everything from the day he left
The presumption is only as good as your record of the dates. Fix the last day the spouse was at the conjugal dwelling and keep whatever marks it — messages, a photograph, a neighbour who can say so. Then keep the record of the silence: unanswered calls, the last remittance and its date, letters returned, enquiries made of his family and what they said. Three months is a short period to document and a long one to reconstruct from memory two years later, which is the position most people are in when they finally ask.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- David A. Noveras vs. Leticia T. Noveras AM. No. P-06-2227 August 19, 2014 Office of the Court Administrator vs. Atty. Mario N. Melchor, Former Clerk of Court VI, RTC, Br. 16, Naval, Biliran (now Presiding Judge, MCTC, Calubian-San Isidro, Leyte), G.R. No. 188289, August 20, 2014 — read the decision on LawPhil →
- Imelda Relucio vs. Angelina Mejia Lopez, G.R. No. 138497, January 16, 2002 — read the decision on LawPhil →