Legal Advice 2

I just would like to share this to you guys.  Hope it would give you some bits of information.

I had a client who was asking if she could file an adultery case against her husband who had sexual intercourse with his other woman.

To understand fully this, we have to discuss how adultery is committed.

Article 333 of the Revised Penal Code of the Philippines states 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."

So based on the definition, adultery is not committed by a married man.  It is committed by any married woman who shall have sexual intercourse with a man not her husband.  Meaning the woman shall have sexual intercourse with her other man.  The other man shall also be charged with adultery if he has knowledge that a woman whom he had sexual intercourse with is married.

So what my client may file is concubinage case.  But could she really file it?  Let's discuss it why.

So the same Revised Penal Code of the Philippines states in Article 334 how the husband may be charged with concubinage.  "Any husband who shall keep his 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.

In adultery case, mere sexual intercourse of a woman to a man not her husband would really consummate the crime of adultery.  However, in concubinage case, mere sexual intercourse of a man to a woman not his wife does not necessarily fall into concubinage.  The wife must show that his husband had kept a mistress in the conjugal dwelling, or, his husband had sexual intercourse, under scandalous circumstances, with his other woman, or, his husband had cohabited with his mistress in any other place.

So going back to my client situation, if her husband had a mere sexual intercourse with his mistress, my client could not file a concubinage case. Her case would be dismissible if filed in court.  However, she may still tap other remedy under the provision of Republic Act 9262 or the Violence Against Women and Their Children Act.