• Adultery committed regardless of status of woman’s marriage

    Persida Acosta

    Persida Acosta

    Dear PAO,
    I found out that my wife is having an illicit affair with her former boyfriend. I confronted her about it but instead of getting an apology, she had the gall to pass the blame on me, claiming that I am always busy. Her answer enraged me so I threatened to sue her and her ex-boyfriend. To my surprise, she answered that I cannot sue them because our marriage is not valid. Is she correct?

    Dear Calvin,
    The policy of our State tilts in favor of marriage to the extent that a presumption is established that a marriage is valid. Every intent of the law or fact leans toward the validity of the marriage bonds. It is not to be lightly repelled; on the contrary, the presumption is of great weight (Alcantara vs. Alcantara, G.R. No. 167746, 531 SCRA 446). Hence, bare allegations claiming that a marriage is void, such as the claim of your wife, must not be taken on its face. It must be sufficiently substantiated and proved by the person making the allegation.

    Nonetheless, you may still file a case against your wife and her paramour regardless of the status of your marriage. Our Revised Penal Code provides that 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, Act No. 3815). Like all the other penal laws, the provision provided the elements of the crime, to wit: (1) the woman must be married; (2) sexual intercourse with a man not her husband; and (3) with respect to the man, he knew that the woman was married.

    That legal provision does not end there, however,. At the end, it states “even if the marriage was subsequently declared void.” According to Prof. Luis B. Reyes, in view of such phrase, it is not necessary that there is a valid marriage between the offended husband and the guilty woman. There is adultery even if their marriage is subsequently declared void (The Revised Penal Code Book II, 18th ed., 2012, page 904).

    As pointed out by Prof. Reyes, such view is also consistent with the early ruling of the Supreme Court in the case of U.S. vs. Mata, where the High Court, interpreting a similar phrase under the old Penal Code, stated, “It is quite clear from the peculiar phrasing of the last paragraph of this article, that the lawmakers intended to declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear that she is entitled to have her marriage contract declared null and void, until and unless she actually secures a formal judicial declaration to that effect. Thus, it was held in the said case that the provisions of the code on adultery apply to the infidelity of the wife of a bigamous (and therefore void) marriage (18 Phil. 490).

    Parenthetically, our Revised Penal Code provides that the offended party cannot institute criminal prosecution for adultery if he shall have consented or pardoned the offenders (Art. 344). Prior consent and subsequent pardon by the husband are explicitly provided as defenses in an adultery suit. No similar express provision grants the guilty spouse and her paramour the right to use the claimed defense of nullity of marriage.

    On the basis of the foregoing, the alleged invalidity of your marriage, even if proven to be true, may not be used by your wife and her paramour as a defense in case you decide to file a case for adultery against them. Hence, you may still file a case against them.

    We hope we were able to address your concern. Please bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary if facts are changed or elaborated.

    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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