Dear Atty. Vlad

My brother has been a loyal and dedicated husband to his wife and a loving father to his three sons. His work is in Metro Manila while his family is living in Cavite, in the same barangay where my family lives. My brother comes home every Friday night and leaves early Monday morning for work. He has no vices and I have witnessed how he has totally devoted all his time to support and care for his family. Thus, I was absolutely devastated for him and my nephews and utterly infuriated with my sister-in-law when I learned last month that my sister-in-law is apparently having an affair with a man who also lives in our barangay. The entire neighborhood already knew about the affair as a lot of them have seen my sister-in-law sneak out of the house of her paramour early morning before my nephews wake up and go to school and have seen them together in different places. My brother tried to save their relationship by talking to my sister-in-law but she denied the affair. She eventually admitted it when my brother, perhaps in a final attempt to save their marriage, sought the help of the barangay. Even after my brother told her that he is willing to forgive her and forget about the affair if she will just put an end to it and promise to be faithful to him and their kids, my sister-in-law did not budge. Instead, she left their house and lived with her paramour. Even when my brother is still absolutely hurting, he continued working to support his family. He would come home during weekdays as much as he could to be with my nephews. In the meantime, my sister-in-law do not even have the decency to live elsewhere, away from her husband and children who are hurt and humiliated by her continuous affair with her paramour.

Can my brother file a case of adultery against my sister-in-law to stop her from continuously hurting and humiliating her family? Can I or one of my nephews, who is already of legal age, file the case of adultery against my sister-in-law if my brother prefers not to pursue an adultery case against her? I have caught my brother still talking to my sister-in-law over the phone. He is probably still hoping that he will still eventually win her back. In fact, in one of my encounters with my sister-in-law where I warned her that she can be criminally prosecuted for adultery, she bickered that my brother had already forgiven her and no longer have a cause of action for adultery against her. I hope you can guide us. I wish my brother and nephews will be out of this mess soon and be able to move on.

Jenny

Dear Jenny,

Your brother and nephews are blessed to have someone like you who loves and cares for them. Unfortunately, even with your best intentions, neither you nor any of your nephews can file the adultery case against your sister-in-law. Under the law, it is only the offended spouse who can file a case of adultery against the offending spouse. Unlike the criminal offenses of rape acts of lasciviousness, seduction and abduction, no one else can file a case of adultery on behalf of the offended spouse.

To prove adultery, there are several elements that must be established: (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. The first element may be proven by submitting the marriage certificate of the couple. In your brother’s case, the third element may be proven by showing that the paramour lives in your neighborhood and it is impossible for him not to know that your sister-in-law is already married during their affair.

As regards the second element, please note that convictions for the crime of adultery have frequently been had without direct evidence as to the specific acts constituting the offense. In proving the offending spouse’s infidelity, it is not necessary to show pictures or videos of her in the actual act of sexual intercourse. Commission of the crime of adultery, like proof of the commission of most other crimes, may safely be rested on circumstantial evidence when that evidence is such that it leaves no room for reasonable doubt of the guilt of the accused. Circumstantial evidence may be used such as testimonies from witnesses who saw them together in different places and showing intimate body language between them.

As regards the pardon allegedly already extended by your brother to your sister-in-law, pardon as a defense in a criminal case for adultery has to be extended by the offended party to both offenders (the wife and her paramour).

Atty. Peachy Selda-Gregorio