Can mistress be held liable under RA 9262?

In the knotty sphere of marriage, sometimes an interloper appears. To be sure, the trespasser had been invited in, for no third party can encroach on a relationship without solicitation, encouragement, or acquiescence from someone on the inside. And this makes the assignment of fault tricky. Read more: Atty. Reeza Singzon (July 12, 2015). COMMENTARY: Can a mistress be held liable under the law? All too frequently, an aggrieved wife would flail at her husband’s mistress, or a cuckolded husband would charge at his wife’s lover, never stopping to think that it takes two to do a sizzling extramarital tango. But the law is not as blinded by such passionate rage; the law assigns blame equally among all the guilty.

In the case of a two-timing husband, he and his mistress can be jointly charged with concubinage if any of the following is present: (1) he keeps his mistress in the house he shares with his wife; or (2) he lives with his mistress in any other place; or (3) he has sexual intercourse with his mistress under scandalous circumstances. In the case of an unfaithful wife and her lover, they can be jointly charged with adultery. Adultery and concubinage are criminal offenses. Anyone found guilty of these crimes may be imprisoned.

In both cases, the aggrieved spouse cannot selectively charge the third party alone. The complaint must include both the unfaithful spouse and the third-party lover as respondents. Neither can the offended spouse file any such complaint if he/she consented to the adultery or concubinage or otherwise pardoned or condoned the offenders. How can one determine if there has been pardon or condonation?

Condonation is implied when the innocent spouse has sexual intercourse with the guilty spouse even after discovery of the infidelity. Such an intimate act necessarily implies forgiveness. Note that if the illicit lovers marry despite the subsistence of the unfaithful spouse’s first marriage, such cheating spouse may also be criminally charged with bigamy. The mistress or lover may be included in the bigamy charge if he/she had prior knowledge of the subsisting marriage and still consented to be married.

Not all extramarital affairs, however, are as brazen, or scandalous. In the Philippines, where such affairs are common and even accepted as fact of life, mistresses and lovers abound. Secrecy is elevated to an art form so oblivious spouses remain clueless and the raging affair can continue uninterrupted. The surprising revelation often comes only at the death of the unfaithful spouse, when his ersatz "widow" and illegitimate children weep before the coffin at the wake, or serve summons on the wife to demand their share of the inheritance, to the utter shock of relatives and friends who shake their heads in judgment, having known the deceased to be "morally upright" or "devoutly religious."

When an otherwise discreet affair is discovered, whether in life or after the death of the unfaithful spouse, some aggrieved spouses choose to turn a blind eye to keep the peace, or to save face. In the case of a financially dependent spouse, suffering in silence is often the chosen recourse, for a cheating spouse who is a breadwinner usually dominates the marital relationship. “As long as they leave me alone, he can sleep around all he wants,” a betrayed wife would say, fearful of repercussions at home from a husband who wields the power of the purse.

Such wives are sadly unaware that they have a recourse under the law, for withholding financial support is considered economic abuse against a woman and is actionable under the Anti-Violence Against Women And Their Children Act (RA 9262). Furthermore, a husband's infidelity that causes mental or emotional suffering for his wife is considered psychological violence and is also actionable under the same law. But let's assume a wife knows about these remedies and chooses to do nothing for fear of implicating her husband, yet there is a mistress who crosses the line drawn by decorum and discreet conduct. Read more: Atty. Reeza Singzon (July 12, 2015). COMMENTARY: Can a mistress be held liable under the law?

What then are a wife's remedies under the law? What if the mistress is feisty and manipulative by nature, and feels emboldened---even justified---to poison the marriage because the husband told her he doesn’t love his wife anymore? What if the mistress calls or sends text messages to the wife to taunt her about the affair, or uses the Internet to harass the wife through indelicate messages or comments, or posts intimate photos of herself and the cheating husband? What if a lover harasses a married woman and her family because she failed to fulfill her promise that they would run away together into the sunset and be a real couple forever and ever? What if he accosts the woman's husband, or creates scandal outside her home, or forces his way inside the house to confront her? Does the law give an aggrieved spouse any recourse against such a paramour yet still preserve the family?

There are many remedies under the law, depending on the desired result. To make a troublesome third party pay for their indiscretion and disruptive conduct, an aggrieved spouse may file a civil case for damages against the mistress or lover alone (no need to include the guilty spouse). The basis for such a complaint is Article 26 of the Civil Code which gives the offended party a cause of action for a third party’s meddling with, or disturbing, a person's private life or family relations. This cause of action is commonly called "alienation of affection." It seeks compensation for a third party’s malicious act of estranging a person from his/her lawfully wedded spouse or family.

In addition to the civil case for the payment of damages, there are several criminal cases an aggrieved spouse may file to seek imprisonment of a troublesome mistress or lover. For malicious comments or posts on the Internet that tend to dishonor or ridicule the offended spouse, a criminal complaint for libel may be filed. If found guilty, the libelous paramour may be imprisoned or ordered to pay a fine, or both. For disruptive mistresses or lovers who create public disturbances outside the spouses' home or near the person of the spouses or their family, a police officer may be called to arrest the offending paramour on the spot. A criminal complaint for alarms and scandal may thereafter be filed against such a troublesome mistress or lover.

If a paramour should threaten the spouses or their family (think “Fatal Attraction"), a criminal complaint for grave threats may be filed. A charge of trespassing may also be filed if the offender has entered the family home uninvited. If the trespassing paramour boiled the family pet in a pot as Glenn Close did in the movie, or otherwise harmed any animal in the family home, an additional criminal charge may be filed against her/him for violation of the Animal Welfare Act (RA 8485). If a homicidal paramour attacks anyone in the family with a weapon, as Glenn Close did in the film (are you starting to fear mistresses now?), he/she may be charged with either attempted murder or attempted homicide.

But these are extreme circumstances. Let's dial it down a little and assume the most commonly-occuring scenarios in Filipino extramarital affairs. If, during a confrontation, the mistress or lover speaks harshly to the aggrieved spouse in a manner that shames or ridicules the latter, the offender may be charged with slander (oral defamation). If there is spitting at the innocent spouse, or slapping, or shoving, the charge is slander by deed. If harder physical blows are involved, the offending paramour may be charged with either serious, less serious, or slight physical injuries, depending on the injuries sustained by the offended spouse.

Even if the mistress or lover creates only minor disturbances that merely cause annoyance, such as calling or texting the innocent spouse, or harmlessly stalking from a distance, a criminal charge for unjust vexation may still be filed by the offended spouse. If a mistress receives an allowance or fancy gifts from a cheating husband, or if she is housed, clothed, and fed by him, the aggrieved wife may want to test the law by filing a criminal case of prostitution against such mistress. Under the law, any woman who, for money or profit, habitually indulges in sexual intercourse or lascivious conduct is deemed to be a prostitute.

In any case, an aggrieved spouse may also file a civil complaint to recover any real or personal property given by his/her unfaithful spouse to a mistress or lover. This includes houses, condo units, cars, jewelry, cash, etc. Such properties are part of the conjugal assets and may not be given away without the consent of both spouses.

Atty. Reeza Singzon is a trial lawyer specializing in family law and civil law. For questions or comments, she may be reached at Read more: Atty. Reeza Singzon (July 12, 2015). COMMENTARY: Can a mistress be held liable under the law?