Abandoned wife can’t just shack up with a paramour

Persida Acosta

Persida Acosta

Dear PAO,
I got married a couple of years ago. Unfortunately, our relationship did not last and I left our house. Lately, I heard that my wife is having an illicit relationship with another man and is allowing our son to travel around with the guy. I confronted her about this, and threatened to sue her and her paramour. During our discussion, she mentioned that I do not have the right to sue because I abandoned her. Is this true?

Dear Paul,
The fact that you are the one who left the family home does not disqualify you from filing a complaint for adultery against your wife and her paramour.

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 (Art. 333, Revised Penal Code [RPC]). What the law punishes is sexual congress with another man while the marriage subsists. As long as the marriage is not yet terminated or declared void, the wife may be prosecuted and punished for the crime of adultery if it can be proved that she had sexual intercourse with a man other than her husband. Hence, abandonment of the husband, by itself, has no effect on his right to file a complaint for adultery. Neither is abandonment an absolute defense in an adultery case which would exonerate the wife and her paramour from criminal responsibility for their actions. In order to exculpate themselves from criminal responsibility, an erring wife and her paramour may prove that the husband had prior consent to the relationship, or that the latter previously pardoned them pursuant to the provision of the law, which states that the offended spouse cannot institute a criminal case for adultery or concubinage, as the case may be, if he or she has consented or pardoned the offenders (Art. 344, RPC).

Nevertheless, abandonment without justification by the offended spouse is a special mitigating circumstance, which reduces the penalty that may be imposed on the erring wife and her paramour. In such a case, the penalty next lower in degree will be imposed by the court (Art. 333, RPC). Thus, instead of imprisonment for four years, two months and one day to six years (prision correccional in its medium and maximum periods), the court may only impose imprisonment for four months and one day to two years and four months (arresto mayor in its maximum period to prision correccional in its minimum period).

Take note, however, that abandonment has a definition in our jurisprudence. To constitute abandonment, there must not only be physical estrangement but also financial and moral desertion. It refers to absolute cessation of marital relations and duties and rights, with the intention of perpetual separation (Dela Cruz vs. Dela Cruz, 22 SCRA 333).

We hope you find the foregoing instructive. Please bear in mind that this opinion is based solely on the facts you narrated and our appreciation of the same. Our opinion may vary should actual facts and circumstances change.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net


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