Filing an adultery case involves legal intricacies

Dear PAO,
I am a public school teacher and I want to know how I can file a case for adultery against my wife. I hope you can help me.
Mr. X

Dear Mr. X,
The Revised Penal Code defines certain wrongdoings as crimes and makes them punishable. Article 333 thereof defines adultery:

“Article 333. Who are guilty of adultery. — Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void.

Adultery shall be punished by prision correccional in its medium and maximum periods.

If the persons guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.”

The crime of adultery has the following elements: 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 (Luis B. Reyes, Revised Penal Code, Book II, 14th Ed., page 849). It should be noted that adultery is a private crime that may only be prosecuted by the offended spouse. Furthermore, the offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders (Section 5, Rule 110, Rules of Court). If all of the foregoing were present, the offended spouse may initiate the prosecution of adultery by executing a sworn written statement charging his spouse with the offense of adultery. This shall be subscribed before the prosecutor of the place where the adulterous act is committed.

We can only imagine the difficult situation that you are currently in. But the filing of a criminal case, especially against the one person whom you have decided to share your life with, involves legal intricacies that a person without legal background may not be familiar with. On this note, we highly recommend that you consult a lawyer or go to the nearest Public Attorney’s Office (PAO) in your place so you can tell the whole details of your concern. Should you qualify as a PAO client, we have trained and dedicated lawyers who are more than willing to provide you with the necessary legal assistance that you need.

We hope that we were able to address your concern. Please be reminded that 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.

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

Adoption can only be canceled by adoptee

Dear PAO,
My friend adopted a child. Her petition was granted by a court in Quezon City way back in 2001. She thought that adopting a child was the best thing for her because she was already in her mid-forties at the time, had a stable job but was not in a relationship. Several years after the adoption, she and the child were having conflicts which, oftentimes, led to the child verbally and physically hurting my friend. She is wondering if there is any possibility of having the adoption canceled. I am hoping you can enlighten us. Thank you and more power.
Edna

Dear Edna,
Adoption is a legal process that creates lawful ties between persons who are commonly known as adoptee and adopter. It is not a simple process. In fact, it may be said that adopting a child involves a very complex process whereby the court determines the qualifications of the adopter and the availability of the adoptee, in consonance with the provisions of the Rules on Adoption (A.M. No. 02-6-02-SC).

As all other legal ties, adoption may be canceled or rescinded and this may be initiated through a verified petition for rescission of adoption filed before the Family Court of the city or province where the adoptee resides (Section 20, Rules on Adoption).

We would like to emphasize, however, that a petition for rescission of adoption may only be filed by the adoptee who is over eighteen (18) years of age, or with the assistance of the Department of Social Welfare and Development, if he is a minor, or by his guardian or counsel if he is over eighteen (18) years of age but is incapacitated. It may never be initiated by the adopter. As can be gleaned from the law, “x x x Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code. x x x” Moreover, such petition may only be filed on the basis of any of the following grounds: (1) repeated physical and verbal maltreatment by the adopter despite having undergone counseling; (2) attempt on the life of the adoptee; (3) sexual assault or violence; or (4) abandonment or failure to comply with parental obligations (Section 19, Rules on Adoption).

In the situation that you have presented before us, we regret to inform you that your friend may not seek redress from the courts for the cancelation of the adoption that was granted in her favor in 2001. Being the adopter or the one who adopted the child, she is not qualified to file a petition in court. Nevertheless, she may opt to deprive her adopted child of his or her legitime through the process of disinheritance. This may be done by your friend through the execution of a last will and testament, specifying therein such denial of legitime and the cause for such denial. It bears stressing that under Article 919 of the New Civil Code of the Philippines, “The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: x x x (6) Maltreatment of the testator by word or deed, by the child or descendant; x x x”

We hope that we were able to answer your queries. Please be reminded that 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.

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

Abuse exists even in absence of its physical manifestation

Dear PAO,
I have been silent for far too long and I want to take action now. I am in a relationship with a man for about seven years now. We had plans of marriage then but it never really materialized. It was fine by me because I have always thought that marriage is just a mere piece of paper. I thought that what was more important is that my partner and I are living together.

We were already in a relationship and in this kind of arrangement for two years, when I started noticing that he gets easily irritated even with the small details. When my daughter was growing up and as years passed, the irritation became a combination of resentment and anger. He would shout at me and our daughter, and it did not matter if we were at home or in a public place. There were even occasions when he would humiliate me in front of strangers like sales ladies in department stores or delivery personnel. He would often say that I am stupid and would curse me in front of our daughter.

His behavior has not only traumatized me but also our daughter. She is afraid to talk to other people, especially older men even if they are our relatives. I kept this to myself because I was ashamed to admit to my family and friends what I was going through. But I have reached my limit when two weeks ago he shouted at me and embarrassed me in a restaurant full of people. How do I protect myself as well as my daughter from him? Is there a case I can file against him considering that he has never actually inflicted physical harm on me? Please enlighten me. I do not know who else I can run to.
K2B2

Dear K2B2,
It is common for victims, women in particular, to feel repressed of the abuse and violence they are experiencing. We can never blame them because, somehow, society pressures us to only display what is good, and hide what is bad about our lives. But this should not be encouraged. Rather, we should promote openness and acceptance so that people will learn to choose to speak up so as to lessen violence especially against women and children.

As in your case, you should stop feeling ashamed of what you are going through because, before anyone else can help you, you should first help yourself. And you are not only saving yourself from an abusive person, you are also saving your own child.

Even if there is no physical manifestation of abuse, it does not mean that abuse does not exist at all. In fact, Republic Act (RA)  9262 or the “Anti-Violence Against Women and Their Children Act of 2004,” does not only limit the definition of abuse and violence to bodily or physical harm. It encompasses all aspects of abuse, which includes sexual, psychological or economic harm or suffering.

Furthermore, the application of the law is not merely confined to husbands and wives.

Section 3 (a) of the  law defines “violence against women and their children” as “any act or a series of acts committed by any person against a woman who is his wife, former wife or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode. x x x” (emphasis supplied)

Applying the foregoing, you may file a complaint against your partner under this law. While it may be true that he has not inflicted physical harm on you, there appears to be psychological violence, or as the law puts it: “acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. x x x” (Section 3 (c), RA 9262)

You may also secure from your barangay a Barangay Protection Order (BPO) so as to immediately safeguard you and your daughter and prevent your partner from committing further acts of violence. Such order is valid for fifteen (15) days. Once the complaint is filed, you may secure from the court a Temporary Protection Order (TPO), which is valid for thirty (30) days, and prior to or on the date of the expiration thereof seek for the issuance of Permanent Protection Order (PPO).

We hope that we were able to answer your queries. Please be reminded that 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.

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