Under the Revised Penal Code, a person who commits marital infidelity is criminally liable for adultery or concubinage, as the case may be. To be held liable for adultery, it should be proven that:
(1) the woman is married; (2) she has sexual intercourse with a man not her husband; and (3) as regards the man with whom she has sexual intercourse, he must know her to be married.
To be criminally charged with concubinage, on the other hand, it must be proven that: (1) the man must be married; (2) he committed any of the following acts: (a) keeping a mistress in the conjugal dwelling, (b) having sexual intercourse under scandalous circumstances with a woman who is not his wife, or (c) cohabiting with her in any other place as husband and wife; and (3) as regards the paramour, she must know him to be married. Concubinage and adultery both punish the spouse and the paramour.
If the aggrieved spouse is the wife, the Supreme Court recently ruled, in the case of Araza vs People, G.R. 247429, 8 September 2020, that marital infidelity may constitute psychological violence and can be punishable under Section 5(i) of Republic Act 9262 otherwise known as the Anti-Violence Against Women and their Children Act. In this case, the Court found that marital infidelity, as a form of psychological violence, is the proximate cause of the offended party’s emotional anguish and mental suffering, to the point that even her health condition is adversely affected. The husband was found by the Court guilty beyond reasonable doubt for violating Section 5(i) of the Anti-VAWC Act.
The Family Code also provides remedies for an offended spouse against the offending spouse who commits marital infidelity. First, the aggrieved spouse may (1) file for legal separation on the ground of sexual infidelity or (2) file a petition for declaration of nullity of marriage when the sexual infidelity is of such nature that manifests a psychological incapacity to comply with their essential marital obligations.
Moreover, Article 26 of the New Civil Code allows the offended spouse to file a complaint for damages against the paramour for meddling with or disturbing their private life or family relations.
***
Atty. Pajarito is an Associate Lawyer from Aranas Cruz Araneta Parker & Faustino Law Offices. He obtained his Bachelor of Laws Degree from San Beda College Alabang School of Law. His practice areas include civil, criminal, and administrative litigation, and family law.
