In the Philippine legal system, marital infidelity is prosecuted under the Revised Penal Code (RPC) through two specific crimes: Adultery (Article 333) and Concubinage (Article 334). Unlike other crimes, these are considered "private crimes," meaning they can only be prosecuted upon the complaint of the offended spouse.
A critical defense in these cases involves the concepts of Consent and Pardon, as provided under Article 344 of the RPC. These legal constructs act as a bar to criminal prosecution; if proven, the court is legally obligated to dismiss the charges.
I. The Concept of Consent (Prior Agreement)
Consent in the context of marital infidelity refers to an agreement or "license" given by the offended spouse before the commission of the adulterous or concubinous act.
- Legal Effect: If the offended spouse agreed to the infidelity or allowed it to happen beforehand, they lose the right to file a criminal complaint.
- Nature of Consent: Consent can be express (written or verbal permission) or implied.
- Implied Consent: This is often inferred from conduct that amounts to "connivance." If a spouse sets up a situation to catch the other in the act, or shows total indifference despite knowing of a brewing affair, the court may rule that consent was present.
Key Jurisprudence: The Philippine Supreme Court has consistently held that a husband who "stands by and takes no steps to prevent" the infidelity, or who actively facilitates it to gain grounds for legal separation, may be deemed to have consented.
II. The Concept of Pardon (Subsequent Forgiveness)
Pardon refers to the forgiveness granted by the offended spouse after the infidelity has been committed and discovered. Under Philippine law, this is often referred to as Condonation.
- Legal Effect: Once a pardon is granted, the offended spouse is legally barred from instituting or continuing a criminal action against the guilty spouse and the paramour.
- The "Package Deal" Rule: A pardon is indivisible. If the offended spouse pardons the guilty spouse, the pardon automatically extends to the paramour. One cannot prosecute the lover while forgiving the spouse.
Types of Pardon
- Express Pardon: A formal, often written statement where the offended spouse explicitly waives their right to prosecute.
- Implied Pardon (Condonation): This is the more common form. It is inferred from the actions of the offended spouse after learning of the infidelity.
III. Proving Condonation: The "Co-habitation" Rule
The most common way to prove an implied pardon in Philippine courts is through continued co-habitation.
| Action | Legal Interpretation |
|---|---|
| Sexual Intercourse | Continued or a single instance of sexual relations after discovery of the infidelity is generally considered the "best evidence" of condonation. |
| Living Under One Roof | If the offended spouse continues to live with the guilty spouse as husband and wife, the law presumes the offense has been forgiven. |
| Delay in Filing | While a delay is not an automatic pardon, a long, unexplained delay in filing a complaint after discovery may be used as evidence of acquiescence or forgiveness. |
IV. Essential Elements for a Valid Pardon
For a pardon to be legally binding and result in the dismissal of a case, it must meet certain criteria:
- Knowledge of the Offense: The offended spouse must have "full knowledge" of the infidelity. You cannot pardon what you do not know.
- Voluntariness: The pardon must be given freely. A pardon obtained through force, intimidation, or undue influence is void.
- Unconditionality: In criminal law, once condonation is established by the act of the parties (such as resuming marital relations), it cannot be easily revoked later just because the couple had another argument.
V. Consent vs. Pardon: Comparison
| Feature | Consent | Pardon (Condonation) |
|---|---|---|
| Timing | Occurs before the act. | Occurs after the act. |
| Nature | Permission or connivance. | Forgiveness or reconciliation. |
| Common Evidence | Agreements, "swinging" arrangements, or active facilitation. | Resumption of sexual relations, continued co-habitation. |
| Legal Basis | Article 344, Revised Penal Code. | Article 344, Revised Penal Code. |
VI. Practical Implications in Litigation
In Philippine jurisprudence (e.g., People v. Schneckenburger or Ligtas v. CA), the courts emphasize that the State’s interest is to preserve the family. Therefore, if the offended spouse has "wiped the slate clean" through pardon or consent, the State will not interfere to punish the act.
Defense lawyers often look for "love letters," text messages, or evidence of shared vacations after the discovery of an affair to establish that a pardon has occurred, thereby seeking the immediate dismissal of the criminal case.