Dear Atty. Joji,

My friend went to Canada to work as an OFW. They separated due his husband’s infidelity the following year, after she discovered that her husband was in romantic relationship with another woman. Worst, she later discovered that the other woman was pregnant with her husband’s child. Two years after, she returned in Manila after her contract expired. Can she still file a case for VAWC even though they separated years prior?

Cherry

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Dear Cherry,

In a recently decided case, the Supreme Court has upheld the conviction for violation of Republic Act 9262 or the Anti-Violence Against Women and their Children Act of 2004 (Anti-VAWC Act) and ruled that although Legal Separation entitles the parties to live separately from each other, the marriage bonds shall not be severed; more so, here, where the separation of the parties is merely in fact and not by legal decree. Verily, any extramarital relation maintained by any of the spouses still constitutes marital infidelity, which is one of the means of committing psychological violence under Republic Act No. 9262.

In the case of XXX vs People of the Philippines, G.R. 274842, The Supreme Court held that Section 3(c) of Republic Act 9262 defines psychological violence as any act or omission which causes or is likely to cause mental or emotional suffering of the victim. Notably, the enumeration of such acts expressly includes marital infidelity. The aforesaid case ruled as follows:

“The People was able to prove beyond reasonable doubt that XXX committed marital infidelity. XXX maintained a relationship with another woman who is not his wife and has, in fact, fathered two children with her. Further XXX's extramarital affair did not begin only after the spouses got separated. Clearly, therefore, XXX was unfaithful to his wife even before they got separated in fact, and his infidelity was the proximate cause thereof.

That XXX committed an act of psychological violence, specifically, marital infidelity, is thus beyond doubt. True, what Republic Act 9262 criminalizes is not marital infidelity per se but the psychological violence causing mental or emotional suffering on the wife. For it is the violence inflicted under the said circumstances that the law seeks to outlaw.”

As to its penalty, the High Court ruled that Republic Act 9262, Section 6 punishes acts falling under Section 5(i) with prision mayor. And, in addition to imprisonment, the perpetrator shall pay a fine in the amount of not less than P100,000 but not more than P300,000 and undergo mandatory psychological counseling or psychiatric treatment and shall report compliance to the court. In the absence of any modifying circumstances, the imposable penalty shall be applied in its medium period, which is eight years and one day to 10 years of prision mayor.

Hope this helps.

Atty. Joji Alonso