LEGAL OPINION

December 10, 2020

Sandy Santamaria
5678 Bayabas St.
Kezon City

Dear Ms Santamaria,

Good day! This is a letter in response to your requested legal advice on the
following matter: (1) suing your husband Ted Johnson for Concubinage; (2) custodial
rights over your child, Ramon Johnson; and (3) asking for a financial support.

The Facts
Here are the key information you have provided so far:
On May 24, 1991, you married a Filipino-American Ted Johnson, in Florida. You
had a son named, Ramon Johnson born last 2016.
Your family moved back to the Philippines in 2018. But last January 2020, Ted
left for the United States bringing along your child.
Last week, you have received divorce papers for you to sign. Also, you have
discovered since last month that Ted has a paramour.

The Applicable Laws

You cannot file a case for concubinage against your husband, Ted.
Concubinage, under Article 334 of the Revise Penal Code, is committed in the following
ways:

(1) by keeping a mistress in the conjugal dwelling;

(2) by having sexual intercourse, under scandalous
circumstances, with a woman who is not his wife; and
(3) by cohabiting with such woman in any other place.

But
since your
husband had already initiated a divorce procedure in the US, you may have the option
to agree with it. Although absolute divorce is not yet recognized in the Philippines, an
exception is stipulated in the Article 26 of the Family code, which provides that:

All marriages solemnized outside the Philippines, in accordance

with the laws in force in the country where they were solemnized,
and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and
38. (17a)
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under
Philippine law.

In other words, the divorce that you may acquire will be recognized here in the
Philippines.
Also, you may file for the custody of Ramon as expressed in Article 213 of the
Family Code:

In case of separation of the parents, parental authority shall be

exercised by the parent designated by the Court. The Court shall
take into account all relevant considerations, especially the
choice of the child over seven years of age, unless the parent
chosen is unfit.

Ramon, as a
minor aged four years old, should be in your custody as a mother. If in case, that it is
proven that you are incompetent to provide for Ramon, the custody is given to Ted.
With regards to support, since both Ted and you are still legal spouse, you may
ask for support for you and Ramon. The provision for this is stipulated in Article 195 of
the Family
Subject to the provisions of the succeeding articles, the following
Code.
are obliged to support each other to the whole extent set forth in
the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and
illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and
illegitimate children of the latter;
and (5) Legitimate brothers and sisters, whether of full or half-blood
Legislative Intent of Paragraph 2 of Article 26 of the Family Code
So far, we have no laws for providing for absolute divorce. But the provision was
included in the law "to avoid the absurd situation where the Filipino spouse remains
married to the alien spouse who, after obtaining a divorce, is no longer married to the
Filipino spouse." The legislative intent is for the benefit of the Filipino spouse, by
clarifying his or her marital status, settling the doubts created by the divorce decree.

The Applicable Jurisprudence

The Revised Penal Code has already laid down the requisites for filing a case for
Concubinage. Of the three requisites, having a proof of cohabitation of the guilty spouse
and the paramour presupposes the existence of the other two. To "cohabit," according
to the sense in which the word is used in a penal statute, means dwelling together as
husband and wife, or in sexual intercourse, and comprises a continued period of time
(People of the Philippine Islands v. Pedro Pitoc and Marciana del Basco, G.R. No.
18513 September 18, 1922).
Furthermore in Busuego v. Office of Ombudsman and Buseugo (G.R. No.
196842 October 9, 2013), the cohabitation was also demonstrated when the husband
had an affair with one their household helper. Why are these relevant? These
jurisprudence reveals that filing a case for Concubinage needs a solid proof, and not
mere hearsays. Based on your statement, as of now, you only have the knowledge of
the illicit affair.
Regarding the divorce proceedings your husband has instituted outside the
Philippines, we have a lot of case precedence that actually recognized the divorce
obtained by an alien spouse or by Filipinos who eventually gained foreign citizenship.
One of which can be examined in Republic of the Phils. v. Orbecido III (G.R. No.
154380 October 5, 2005) where a Filipino who subsequently obtained US citizenship
filed for a divorce against his Filipina wife. The court recognized the divorce by virtue of
doctrine of reciprocity embedded in the Par 2, Article 26 of the Family Code.
The jurisprudence for custodial rights over your son and property relations are
held in both Dacasin v. Dacasin (G.R. No. 168785 February 5, 2010) and Van Dorn
(G.R. No. L-68470 October 8, 1985). Both recognized a foreign divorce decree that was
initiated and obtained by the Filipino spouse the extended the legal effects on the issues
of child custody and property relation, respectively. In Dacasin, post-divorce, the former
spouses executed an Agreement for the joint custody of their minor daughter. Later on,
the husband who is a US citizen, sued his Filipino wife enforce the Agreement, alleging
that it was only the latter who exercised sole custody of their child. The trial court
dismissed the action for lack of jurisdiction, on the ground, among others, that the
divorce decree is binding following the "nationality rule" prevailing in this jurisdiction.
If in the case that the foreign divorce decree will be granted, there will be no
marital binding between you and Ted. Still, the court will not lose sight of the legal
obligation of your husband to your child in purview of the Philippine law. A foreign
national who asserts that he must be obliged to give support to his child with the
divorced wife was even compelled to perform the duly required child support (Del
Socorro v. Van Wilsem, G.R. No. 193707 December 10, 2014).

Analysis and Conclusion

Considering the legislative intent of Paragraph 2 of Article 26 and the penal
provision on Concubinage, the better course of action is to go with the divorce
proceedings. On your case, it is your husband who is instituting the divorce proceeding,
and under such proceeding, child custody and support will be determined by the court.
Under Philippine law, the custodial rights over the child leans toward in favor of the
mother.
The burden of proof in the allegation of Concubinage lies with the one who
alleges. Since it is a private crime, only the offended party or the innocent wife can
insititute the criminal action. This means a greater affliction on your part, as compared
to the divorce proceedings.

Recommendation
From the presented applicable laws and jurisprudence, we would like to counsel
and encourage you to proceed with the divorce procedures. But if your heart is set on
punishing your husband, you may proceed with filing criminal action, provided that the
discussed requisites are satisfied. You may further investigate your husband, to verify if
its infidelity by concubinage or by mere extra-marital affair.

We greatly appreciate your trust and confidence in seeking legal advice from us.
Please do not hesitate to contact us if you have further questions.

Sincerely yours,
(Sgd.) Legal Counsel