Dear PAO,
I just want to know if I can file a case against my husband. I am currently in Canada and a citizen, and my husband is a US citizen. We got married in Canada. When we went for a vacation in the Philippines, he had an affair and the last thing I heard, they are living together now.

Right now, he is in the Philippines. I only have their pictures, and his relatives confirmed that they are living together.

My questions are: What case can I file for that? Can I file a case against her mistress? Should I file it here in Canada or should I seek legal advice in the Philippines?

Hope to hear from you soon.

Thanks,
Grace

Dear Grace,
It is very unfortunate that your vacation here in the Philippines ended badly for your marriage. To answer your questions, we must first clarify that our legal advice will only be limited to any possible case that you can file here in the Philippines. In order to know if you can file any other case against either your husband or his mistress in Canada or in the United States of America (USA), you must inquire on that matter from a lawyer practicing and licensed to practice in Canada or in the USA.

According to your letter, your husband is having an affair and living with his mistress. You also mentioned that he is in the Philippines right now. However, you did not specify whether he is in the Philippines for another vacation or whether he is already living with his mistress here in the Philippines. For the purpose of our discussion, we will assume that your husband is living with his mistress here in the Philippines.

Criminal laws in all states have common characteristics: they are general, territorial and prospective. The first two characteristics are relevant to your problem. First, it is general, as they are binding on all persons who live or sojourn in Philippine territory (Reyes, The Revised Penal Code, 2006, Vol. 1, page 6, citing Art. 14 of the New Civil Code). Save for some circumstances under public international law and treaty stipulations, criminal laws in the Philippines apply to all who live and travel in the Philippines regardless of one’s nationality or citizenship. Therefore, if an American commits an act in the Philippines which is punishable as a crime in the Philippines, the American can be indicted and convicted for the said crime in the Philippines even if the crime committed by the American is not punishable as a crime in the USA. Second, criminal laws are territorial, as they undertake to punish crimes committed within the Philippines (Ibid., page 12). Since it appears in your letter that your husband had an affair here in the Philippines, then our next step is to look at whether your husband, in having an affair while married, committed any crime punishable here in the Philippines.

In the Philippines, it is a crime for a married man to keep a mistress in the conjugal dwelling, or to have sexual intercourse with his mistress under scandalous circumstances, or to cohabit with his mistress in any other place. This is punishable as concubinage under Article 334 of the Revised Penal Code. You did not mention whether his mistress is also a married woman. If such is the case, they may also be committing the crime of adultery under Article 333 of the Revised Penal Code. Adultery is committed by a married woman who has sexual intercourse with a man who is not her husband, and by the man who has carnal knowledge or her knowing that the woman is already married. Therefore, since your husband is living or cohabiting with his mistress, it appears that you may file a criminal complaint for concubinage against your husband and his mistress here in the Philippines. If the mistress is already married to another man, a criminal complaint for adultery may also be filed against them.

As to your question on whether you can file a case against the mistress, our Penal Code provides that you must file a complaint against both your spouse and his mistress. Otherwise, the complaint will not prosper. Article 344 provides:

“Prosecution of the crimes of adultery, concubinage, seduction, abducation, rape and acts of lasciviousness. - The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor in any case, if he shall have consented or pardoned the offenders. xxx”

In order for the criminal complaint for concubinage to prosper, you, as the offended spouse, must lodge a complaint against both of them. As to the crime of adultery, it is the spouse of the mistress who must initiate the criminal complaint against both of them.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.