Grounds for filing complaint for adultery

Dear PAO,
I am an OFW and I found out from my daughter that my wife is cohabiting with another man in our house while I was abroad. What case can I file against my wife and his paramour who knew from the start that my wife is already married?
ED

Dear ED,
Under our law, the husband and the wife have the obligation to live together, observe mutual love, respect and fidelity and render mutual help and support (Article 68, Family Code of the Philippines). Pursuant to this, the Revised Penal Code (RPC) criminalizes certain acts of infidelity by the husband or the wife.

The act of your wife in cohabiting with another man during the subsistence of your marriage is considered as adultery which is defined and penalized under Article 333 of the RPC, to wit:
“Article 333. Who are guilty of adultery.—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.

Adultery shall be punished by prision correccional in its medium and maximum periods.‘
If the persons guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.”

You may file a criminal complaint for adultery against your wife and her paramour before the Prosecutor’s Office of the place where they are cohabiting with each other. However, you will not be allowed to prosecute them for this crime if you have consented to the commission of the same or have pardoned your wife and her paramour Article 344, RPC). To successfully prosecute them of the crime of adultery, you need to prove the following elements: 1) that the woman is married; 2) that she has sexual intercourse with a man not her husband; and 3) that as regards the man with whom she has sexual intercourse, he must know her to be married (Luis B. Reyes, The Revised Penal Code, Book Two (14th Edition), page 841).

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