Can I still file a case against my husband for cohabiting with another woman once our marriage is declared null and void by the court?
Under the law, a married man who shall cohabit with a woman not his wife shall be guilty of concubinage and shall be meted the penalty of imprisonment. This is according to the Revised Penal Code of the Philippines, which expressly provides:
“Art. 334. Concubinage.—Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.
The concubine shall suffer the penalty of destierro.”
If you are contemplating on filing a criminal case for concubinage against your husband and the latter’s concubine, you must have the capacity to do so. Remember that the crime of concubinage is a private crime, therefore only the wife can file the case and no one else (Article 344, Revised Penal Code of the Philippines).
If your marriage to your husband was already declared null and void by the court, you are no longer his wife. It follows then that you cannot file anymore the criminal case for concubinage against your former husband and his paramour. This was elaborated by the Supreme Court in the case of Imelda M. Pilapil vs. Hon. Corona Ibay-Somera (G.R. No. 80116, June 30, 1989):
“Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. xxx In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor.”
Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the complaining witness therein. But in “private crimes” or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence since the raison d’etre of the provision of law would be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case
On the other hand, if a petition for declaration of nullity of marriage is still pending, you are still considered the legitimate wife of your husband. Therefore, you can institute the Criminal Complaint for Concubinage against him and his paramour, with more reason if the petition has not yet been filed.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to guide you with our opinion on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org