Dear PAO,

My husband works as an OFW in Riyadh. He has been there for three years. Recently, I discovered that he has a mistress there and he is cohabiting with her. Could I sue my husband for marital INfiDELITY EVEN IF THE ACT IS COMmitted abroad?

Vannie

Dear Vannie,

As a general rule, only crimes committed in our country are covered by our penal laws. As such, you may not file a concubinage case under Article 334 of the Revised Penal Code against your husband considering that his cohabitation with his alleged mistress happened abroad. Nevertheless, if the acts of your husband caused you mental or emotional suffering, then you may file a case for violation of Republic Act 9262, otherwise known as the “Anti-Violence Against Women and their Children Act of 2004” (VAWC). Section 3 thereof states that:

“Section 3 – As used in this Act, xxx

“1. ‘Psychological violence’ refers to 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. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.”

Based on the above-stated law, repeated marital infidelity may be considered as a form of psychological violence. In AAA v.

BBB, GR 212448, Jan. 11, 2018, the Supreme Court held through Associate Justice Noel Tijam for the first time that a violation of the VAWC Law by the husband through repeated marital infidelity committed abroad may be prosecuted in the Philippines. It reasoned that in psychological violence, what is being punished is the act of causing mental or emotional suffering on the wife. Since the suffering of the wife happened in the Philippines, local courts may take cognizance of the case. Thus:

“Contrary to the interpretation of the RTC, what RA No. 9262 criminalizes is not the marital infidelity per se but the psychological violence causing mental or emotional suffering on the wife. Otherwise stated, it is the violence inflicted under the said circumstances that the law seeks to outlaw. Marital infidelity as cited in the law is only one of the various acts by which psychological violence may be committed. Moreover, depending on the circumstances of the spouses and for a myriad of reasons, the illicit relationship may or may not even be causing mental or emotional anguish on the wife. Thus, the mental or emotional suffering of the victim is an essential and distinct element in the commission of the offense. x x x

“It is necessary, for Philippine courts to have jurisdiction when the abusive conduct or act of violence under Section 5(i) of RA 9262 in relation to Section 3(a), Paragraph (C) was committed outside Philippine territory, that the victim be a resident of the place where the complaint is filed in view of the anguish suffered being a material element of the offense.”

Based on the foregoing, if you suffered psychological abuse because of your husband’s repeated marital infidelity abroad, you can sue him criminally in the Philippines under the VAWC Law for psychological violence. If your husband does not respond to the charges against him and the prosecutor finds probable cause during the preliminary investigation and files a case in court, the judge may issue a warrant for your husband’s arrest. In such a case, if he comes home to the Philippines, he may be arrested. In addition, you may also request the court to issue a hold departure order to prevent him from leaving the Philippines.

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.