May 7, 2012
Can a mistress file a case against the legal wife?
Dear Atty. Allen,
I am a married woman with two kids. Five years ago, I found out that my husband is having an affair with a 19-year old single woman. I confronted him and he promised that he will stop seeing her. Unfortunately, few months ago I found out that he is still having an affair with the same woman. The sad part is she knows that he is married and has two kids. I do not want to loose my husband for the sake of my kids. I know that if I file a case against his mistress, I would be obliged to file a case against my husband, too. As of now I am thinking of going to the place where my husband's mistress is working and try to talk to her and convince her to leave my husband in a nice manner. I want to ask if she can file a case against me if their illicit affair comes to the knowledge of her co-workers.
Also, I want to ask if she can file any case against my husband? And also can I request her office for her termination if she refuses to leave my husband for grounds of immorality? She is working in a private company.
Hoping for your reply!
—Name Withheld
Atty. Allen replies:
I understand what you were referring to when you said that if you file a case against your mistress, you would be obliged to file a case against your husband too. It is true that you cannot file a case of concubinage unless you implicate your husband as well. In addition, our Revised Penal Code makes it difficult for husbands to be convicted of concubinage because it requires the husband to either "keep a mistress in the conjugal dwelling" or "have sexual intercourse, under scandalous circumstances, with a woman who is not his wife" or "cohabit [with a woman who is not his wife] in any other place" (Article 334, Revised Penal Code).
In contrast, wives can be convicted of adultery on lesser standards. Article 333, the provision on adultery, simply requires that the married woman have sexual intercourse with a man not her husband. If you ask me, if the same standards were made applicable to husbands, our jails will be filled to bursting with philandering husbands. But that's another story.
From your email, I gather that you are interested in getting answers to four questions: 1) do you have any other remedy under the law?; 2) can your husband's mistress file a case against you if her colleagues find out about their illicit affair?; 3) can she file any case against your husband?; and, 4) can you have her terminated from her work in a private company on the ground of immorality?
Let us discuss your first question first. While a criminal prosecution seems challenging at this point, especially since it seems to me that you would like to spare your husband, there is still recourse for you under the New Civil Code.
Article 26 of the New Civil Code provides:
Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:
X x x
(2) Meddling with or disturbing the private life or family relations of another;
X x x
This cause of action is simply referred to as "alienation of affection" and typically filed by an innocent spouse against a third party for "appropriating" the love and affection of the guilty spouse. The suit seeks for an award of damages to compensate for the third party's wilful and malicious act. Unlike a criminal case for concubinage, a suit for alienation of affection does not require you to implicate your husband.
For the answer to your second question, we also look into the New Civil Code provisions on human relations. First of all, you may be criminally and civilly liable if you commit any act that is prohibited under our penal laws. There is nothing criminal about your plan of going to your husband's mistress' place of work to talk to her. As such, filing a criminal complaint against you is out of the question. Now, can she also have a cause of action for damages under the New Civil Code?
Under the New Civil Code, any person may sue for damages against another person who, although in the proper exercise of his rights or the performance of his duties, does not act with justice, or does not give everyone his due, or does not observe honesty and good faith. As a mother and wife who wants to protect the interest of your family and the sanctity of your marriage, it is your right to talk to your husband's mistress and try to convince her to stay away from your husband. As long as you do this in good faith and you don't abuse the exercise of this right, you cannot be made liable if her colleagues find out about the illicit affair.
Your third question is a little vague but I will assume that you want to know if your husband's mistress can file any case against your husband in retaliation for any action that you may eventually decide to take against her. Normally, in these types of situations, a cause of action can only exist if the third party is also innocent. By "innocent," we mean that she was misled by the other party into thinking that he was single and, on the ground of this misrepresentation, agreed to enter into a relationship with him. On the contrary, you said in your email that your husband's mistress knows that your husband is married and has kids. As such, based on the limited facts and my presumption, I cannot see how your husband's mistress can proceed against your husband.
Finally, you asked if you can request from her office that she be terminated on the ground of immorality. Immorality is typically a ground for disciplinary action in any company, but there may be differences in the type of disciplinary action that is attached to this infraction, as well as the context of the act of immorality that is punishable under the company rules and regulation. For example, some companies only consider work-related acts of immorality as a ground for termination. If I were you, I would try to find out the details of the company policies first before you take any positive action. In case you decide to pursue this, know that you are also well within your rights to do so.
I hope I have sufficiently answered your questions. I wish you the strength and the resolve as you work to keep your family together and, more importantly, to secure for your kids what they deserve.
If you have questions for Atty. Allen, email feedback@herword.com.
Atty. Allen A. Liberato is head of Corporate Legal Affairs at strategic marketing communications firm TeamAsia. She earned her Bachelor's Degree from the University of the Philippines Diliman and her law education from the University of Perpetual Help under Dean Justice Isagani A. Cruz.
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