Dear PAO,

I have been married for five years, but my husband and I are no longer happy together because of our irreconcilable differences. We mutually agreed to live separately and to allow each other to move on and enter into new relationships. Based on that agreement, I entered into a relationship with another man. After living together with my new partner for several months, I became pregnant. When my husband learned about my pregnancy, he threatened to file a criminal case for adultery against me. Given these circumstances, can he still file an adultery case even though we had mutually agreed to separate and to allow each other to have new relationships?

Isabel

Dear Isabel,

From your narration of facts, you and your husband had already been living separately and had entered into a mutual agreement allowing each other to move on and establish new relationships, long before your husband threatened to file a case for adultery against you. This voluntary separation clearly reflected your mutual recognition that the marriage had irretrievably broken down due to irreconcilable differences. However, it bears emphasizing at the outset that a mere de facto separation does not automatically shield a spouse from criminal prosecution for adultery because, in the eyes of the law, your marriage remains valid and existing until a judicial declaration from the court severs the marital bond through a decree of nullity or annulment.

Nevertheless, while your mutual agreement cannot legally dissolve your marital bonds or legitimize such extra-marital affairs, the prolonged de facto separation, together with your husband’s apparent consent to your subsequent relationship, are circumstances that may negate the basis for maintaining a criminal prosecution or otherwise affect your husband’s right to pursue the action. The act of your husband may constitute prior consent or condonation to your subsequent affair.

Section 5, Rule 110 of the Revised Rules of Criminal Procedure, as amended by a.m. 02-2-07-SC issued by the Supreme Court on April 10, 2002, explicitly states that:

“The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.”

In your case, your husband did not merely tolerate the situation, but has likewise actively consented to it through your mutual agreement. He was fully aware that you can enter into a new relationship, acquiesced to these arrangements for months, and only after he learned that you were expecting a child with another man that he threatened to file a complaint for adultery. This sequence of events raises a legitimate question as to whether your husband was motivated by the existence of the alleged offense itself or by his adverse reaction to your pregnancy and your new family.

In this regard, your agreement to enter into a new relationship followed by the sudden threat of criminal prosecution only after learning of your pregnancy, appears inconsistent with the conduct of an “offended spouse” who has been genuinely offended by the relationship from its inception. By entering into a mutual agreement and allowing you to live your life the way you wanted, your husband may have effectively granted his prior consent that could strip him of the legal standing to institute a criminal complaint for adultery.

We hope that we were able to answer your question. This advice is solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].