Dear PAO,
I have been living separately from my husband for 15 years now. I am currently in a six-month relationship with my boyfriend, and we live under one roof. When my husband came to know about it, he threatened me with a criminal case for adultery, despite the fact that he left me and our daughter and decided to live with his mistress. After all those years of brokenness and suffering, now was the time when I could finally be happy and complete. Can I use as a defense in adultery that my husband was the one who first had a mistress?
Ara
Dear Ara,
Please be informed of the Supreme Court’s ruling in the case of Arroyo, Jr. v. Court of Appeals (GR 96602, Nov. 19, 1991, Ponente: Associate Justice Florentino Feliciano), where it was held that:
“In the first place, the case cited does not support petitioner Neri’s position. In the Guinucud case, the Court found that the complaining husband, by entering into an agreement with his wife that each of them were to live separately and could marry other persons and by filing complaint only about a year after discovering his wife’s infidelity, had ‘consented to, and acquiesced in, the adulterous relations existing between the accused, and he is, therefore, not authorized by law to institute the criminal proceedings.’ In fine, the Guinucud case refers not to the notion of pari delicto but to consent as a bar to the institution of the criminal proceedings. In the present case, no such acquiescence can be implied: the accused did not enter into any agreement with Dr. Neri allowing each other to marry or cohabit with other persons; and Dr. Neri promptly filed his complaint after discovering the illicit affair.
“Moreover, the concept of pari delicto is not found in the Revised Penal Code, but only in Article 1411 of the Civil Code. The Court notes that Article 1411 of the Civil Code relates only to contracts with illegal consideration. The case at bar does not involve any illegal contract which either of the contracting parties is now seeking to enforce.” (Emphasis supplied)
As provided in the aforementioned jurisprudence, the concept of pari delicto, which in Latin means “in equal fault,” may not be used as a defense in the crime of adultery. There was an attempt to justify the application of pari delicto in the abovementioned case; however, the court explained that consent or acquiescence to the adulterous relationship of the spouse prior to the institution of the criminal proceeding is different from being equally guilty of having illicit relations as a married individual. The former may be used as a defense in the crime of adultery, while the latter cannot.
In your case, there was no mention that your husband consented or acquiesced to your illicit relations with your boyfriend, and the fact that your husband is equally guilty of having a mistress is not a defense should he file a case for adultery against you and your boyfriend.
We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated on.
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
