I remember appearing in court once where the judge, a woman, told my female client, who was asking for legal separation, that women should tolerate their husband’s extramarital affairs so long as the husband provides adequate support for the family.
The Revised Penal Code’s provisions on adultery and concubinage give expression to this double standard. The Code, which dates back to 1930, criminalizes a single act of sexual intercourse by a married woman with a man not her husband. This is the crime of adultery.
For married men, a single act of sexual intercourse with a woman who is not his wife does not constitute a crime, unless he keeps her in the conjugal dwelling, or cohabits with her in any other place, or engages in sexual intercourse with her under scandalous circumstances. (How canines do it in the streets would qualify as a “scandalous circumstance. ”) The latter is the crime of concubinage.
There had been efforts to address this double standard. Bills were filed in previous Congresses to repeal the distinction and instead criminalize a single-standard crime of sexual infidelity for both women and men. None has become a law to date.
Some women’s groups had also proposed the decriminalization of sexual infidelity and the provision of civil remedies only, such as divorce and the payment of damages. They argued that criminalization does not deter sexual infidelity. Implementing a law penalizing sexual infidelity (no matter that it is single-standard) is hardly feasible in a society where male sexual infidelity is culturally accepted. They also pointed out that some violent husbands have filed false charges of adultery against their wives, to prevent the latter from liberating themselves from abusive relationships. Finally, they argued that in a land without divorce, sexual infidelity is bound to happen where marriages have already failed.
The lack of interest by Filipino legislators to pass a divorce law has also been attributed to this double standard. If some legislators themselves commit sexual infidelity, the lack of a divorce law allows them to maintain their marriages while they continue to have extramarital affairs. Their wives have no choice but to remain in the marriage.
Other than filing a criminal complaint for adultery or concubinage, what remedies do women have when their husbands philander?
Legal separation and “annulment”
A wife may file a petition for legal separation where the husband commits sexual infidelity. The Family Code provides for this civil remedy for both spouses without distinction in cases of sexual infidelity.
A decree of legal separation results in the dissolution of the conjugal partnership or the absolute community of property of the marriage, and the forfeiture of the guilty husband’s share in the net profits of the conjugal partnership or the net assets of the absolute community, in favor of the common children, or the legitimate children of the guilty spouse by a previous marriage, or the innocent spouse, in that order.
Where the philandering is a manifestation of a personality disorder that makes the unfaithful spouse psychologically incapacitated to perform his essential marital obligations, an Article 36 petition may be filed—a remedy popularly known as “annulment. ”
But what if a spouse does not want to end the marriage or file a petition for legal separation? What if the philandering husband has already sired children with another woman?
I know of women who have been extraordinarily generous in dealing with this situation by helping in the support of illegitimate children and even raising them as part of the family. Others, I am sure, could not be as generous and would like to know how to protect themselves and their legitimate children, particularly over property and support.
Support and property
The Family Code provides that the biological parent alone shall shoulder the support for his or her illegitimate children. The support shall be taken from his or her exclusive funds or properties, but if there is none, the conjugal partnership or the absolute community, if able, shall advance such support, subject to reimbursement in the future when the partnership or community is dissolved. (This usually happens when the marriage is terminated by some cause, such as by death of one spouse.)
One other major concern that women usually raise is the reduction of the inheritance of legitimate children where the philandering husband has sired illegitimate children. Illegitimate children have the right to succeed to their deceased parent’s property, to the extent of one-half of the share of the legitimate child. This is a right against which no remedy can be used.
These rules show that protecting oneself against the diminution of resources used for family support, or against the reduction of shares in succession is too late after the philandering spouse has already sired an illegitimate child. In one way or another the resources that the legitimate family can use for its needs—whether community property or exclusive only to the philandering husband—will be reduced where the philandering husband acknowledges the illegitimate child and decides (or is forced) to honor his obligations to the child.
The remedy of judicial separation of property
Instead of terminating the marriage, some women have focused their action on dissolving the conjugal partnership of gains or absolute community of property of the marriage where the husband philanders or has sired an illegitimate child. This remedy entails filing a petition for judicial separation of property.
However, there must be sufficient cause to justify this petition, unless both spouses file it jointly. In the context of philandering, the pertinent grounds are when the husband has abandoned the wife or has failed to comply with his obligations to the family, or has abused his powers of administration of properties granted in a pre-nuptial agreement, or the spouses have been separated in fact for at least one year and reconciliation is highly improbable.
If the court grants the petition, the spouses will divide their conjugal or community assets equally and thereafter they will be governed by a regime of complete separation of property. In this way, the philandering husband will no longer have the chance to misuse the wife’s share of the assets or use them to support his illegitimate children.
Any income or asset that either spouse acquires after the judicial separation of property will be his or her exclusive property. The support of the family will remain the joint responsibility of the spouses, and their individual contribution will be to the extent of their resources or capacity to provide support. (Again, the available resources of the husband will be affected by his obligation to support his illegitimate children.)
The rights of the “other woman” and her child
The “other woman” has some rights, too, and so does her child. Every illegitimate child has the right to use her father’s surname. She has also the right to support, but where the other parent is married, the support will come only from the exclusive property or money of that parent, not from conjugal or community funds. She has the right to succession, to the extent of one-half of the share of the legitimate child.
Of course, the succession is only to the exclusive properties of the biological parent. All these rights, however, are conditioned on the father’s voluntary recognition of paternity of the child, or on compulsory recognition of paternity through the courts.
The Family Code gives the mother exclusive parental authority, including custody, of her illegitimate child. However, this rule is always subject to the best interests of the child. In some cases, the Supreme Court has deprived the mother of custody of her illegitimate child in order to protect the child’s best interests.
The woman who cohabits or has a child with a married man is not entitled to legal support since there is no marriage that gives her that right. But the Family Code provides that should the woman and the married man acquire any property during their period of cohabitation, the woman shall have a share in the property provided she actually contributed to its acquisition in terms of money, property or industry. Her share is only to the extent of her actual material contribution.
What if the “other woman” is a full time homemaker and has no gainful employment? The law says she is not entitled to a share in any property acquired by the married man during their period of cohabitation. That property belongs to the marriage of the man with his legitimate wife. The law does not give value to the “other woman’s” efforts in taking care of the man and the children.
The rule is different where both man and woman are unmarried to any person but live together without the benefit of marriage. In the latter case, the law gives value to the woman’s efforts in caring for the children, administering the household, and freeing the man from household tasks, which entitle her to an equal share in any property acquired during the cohabitation.
Evalyn G. Ursua is a practicing lawyer and human rights advocate in the Philippines. She has a forthcoming textbook on Persons and Family Relations to be published by the U.P. College of Law.