January 6, 2015

To: Mrs. Charmaine Escaler

Address: Unit 1711, The Manansala, Hidalgo Drive, corner Estrella Street, Rockwell Center,
Makati City

RE: Legal advice regarding Mr. Ram Escaler and Ms. Kara Zalderiagas liabilities for their
marital infidelity

Dear Mrs. Escaler,

Thank you for your letter of January 3, 2015 in which you requested legal advice
regarding the liabilities of your husband and his paramour for their illicit affair which started
sometime in August of 2013.

First, in order to prove their illicit relationship, you may only use evidence that is
publicly at your disposal. Such evidence includes possible admissions as well as testimony of
other persons. Evidence that were acquired through the violation of your husband and his
paramours rights like the constitutionally-guaranteed right to privacy are inadmissible in
court and may even be ground for your liability to them.

Based on the evidence youve gathered, the acts of marital infidelity of your husband
occurred sometime during his visits at the luxury resort of his client, Fernando Zalderiaga, from
August to September 2013. Mr. Escaler and Ms. Kara Zalderiaga had a series of sexual
encounters with knowledge of the formers civil status.

Evidence of Mr. Escalers marital infidelity is corroborated by a letter recovered allegedly

written by him to Ms. Zalderiaga during his visits of August to September indicating the words:
I miss you already. Another is the intercepted text from Ms. Zalderiaga last October 5, 2013
wherein it was stated: Cant sleep. I already miss u and a call thereafter wherein she says:
Cant wait. Aside from these, extrajudicial confessions by Mr. Escalers best friend attest to
the existence of Mr. Escalers affair with Ms. Zalderiaga. There is also a direct admission from
Ms. Zalderiaga herself last October 31, 2013 at the visit you made in her resort.

For purposes of filing a case against Mr. Escaler, evidence gathered from the text
message and call made by Ms. Zalderiaga last October 5, 2013 are inadmissible, as it would be a
cause of action for Mr. Escaler to file a case against you in order to uphold his right to privacy
protected under Article 3 Section 1 of the Constitution, which states that:

(1) The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise, as
prescribed by law;
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

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 Moreover, the court has ruled in Zulueta v. CA that [a] person, by contracting marriage,
does not shed her/his integrity or her/his right to privacy as an individual and the constitutional
protection is ever available to him or to her. 1 The right of Mr. Escaler to be protected from
illegal searches is constitutionally guaranteed.

As for the intercepted call from Ms. Zalderiaga to Mr. Escaler, this constitutes a violation
of R.A. 4200 (An Act to Prohibit and Penalize Wire-Tapping). According to Salcedo-Ortanez v.
CA2, the law seeks to punish under Section 1 of the said Act those who, not being authorized by
all the parties to any private communication or spoken word, to tap any wire or cable, or by using any
other device or arrangement, to secretly overhear, intercept, or record such communication or spoken
word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie
or tape-recorder, or however otherwise described. Sec. 4 further claims that: any information
therein contained, obtained or secured by any person in violation of the preceding sections of
this Act shall not be admissible in evidence.

Second, in the absence of any irregularity or defect in your marriage, a case for
annulment will not prosper due to the absence of any marital irregularity or defect. You
married your husband at the age of 26 while he was 28 at the time of the marriage. Therefore,
both of you are at the legal age to contract marriage. There is also no problem with the
documents submitted to the local civil registrar and the marriage license was filed properly
before the marriage was even contracted. The priest who solemnized the marriage is legally
authorized by law and the religious sect.

Looking at your husbands records before the marriage, he had no previous marriage nor
illegitimate children. There was also no medical record of Mr. Escaler being mentally unstable,
nor of any sickness such as a sexually transmissible disease. Psychological incapacity as a
ground will not proper, as it is not shown that Mr. Escaler has neglected his family in a grave
manner and in such a way that it would be incurable. Despite your statement that he has a liking
to alcohol, his drinking does not suffice as a form of addiction since there was no record nor any
affidavit that can prove that his drinking has blurred his decision-making or seriously affected
your marriage. Lastly, he had no previous conviction or crime involving moral turpitude. Thus,
he cannot be prosecuted for violation of Articles 4, 5, 7, 8, 35, 37, 38, 45, and 46 of the Family
Code.

According to Silvino v. May3, the court requires that psychological incapacity is (a) grave
or serious enough to prevent another party from carrying out ordinary duties in marriage; (b)
there is juridical antecedent or it is historically shown that the incapacity antedated marriage and
its overt manifestations emerge only after marriage and finally it is (c) incurable where its cure is

1 Zulueta v. CA, G.R. No. 107383. Feb. 20, 1996.

2 Salcedo-Ortanez v. CA, G.R. No. 110662, Aug. 4, 1994

3 Silvino v. May, G.R. 168796, Apr. 15, 2010.

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beyond the means of the party. Based on the gathered facts, the sexual infidelity of Mr. Escaler is
difficult to correlate as a sign of his psychological incapacity to perform his marital duties that is
grave enough and has a historical antecedent and incurable.

Moreover, the case of Santos v. Court of Appeals4 held that psychological incapacity" [is
applicable only] to the most serious cases of personality disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and significance to the marriage.

Thus, if you plan to pursue annulment, it will be a waste of time and money and I
strongly advise you not to do so.

Third, a legal separation case will also not proper. Article 55 of the Family Code states
that: A petition for legal separation may be filed on any of the following grounds... (8) Sexual
infidelity or perversion.5 The only evidence needed as proof is the single act of sexual
intercourse with a woman.6 Thus this legal action is the best case we could put against Mr.
Escaler.

Upon filing the case, you have to wait for six (6) months, otherwise known as the cooling
off period, before the merits of the case can be tried. During this time, you shall be subject to acts
of reconciliation by courts as mandated by Article 59. 7 During the pendency of the case, you
shall be entitled to live separately from one another and enter into a written agreement for the
administration of your community property. If there is no agreement, the courts can simply
designate either one of you or a third person to administer your property.8 Additionally, you can
enter into an agreement regarding your support. If there is none or it is inadequate, the Court can
adjust the provisions to your needs.9

Thereafter, if the case does prosper and the court issues or grants a decree of legal
separation, you shall be entitled to live separately with your husband but your civil status as
married to Mr. Escaler remains the same.10 Additionally, the community property you have
with Mr. Escaler shall be dissolved and liquidated and Mr. Escaler shall have no right to any
4 Santos v. CA, G.R. 112019, Jan. 4, 1995.

5 An Act Amending Title I, Chapter 3, Article 39 Of Executive Order No. 209, Otherwise Known As The
Family Code Of The Philippines, Nullifying The Prescriptive Period For Action Or Defenses Grounded
On Psychological Incapacity [FAMILY C] Republic Act No. 8533, art. 55 (1987).

6 MELENCIO S. STA. MARIA, JR., PERSONS AND FAMILY RELATIONS LAW 358 (2010 ed).

7 FAMILY C, arts. 58 59.

8 Id, Art. 61.

9 Id, Art. 62.

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share of the net profits earned by the said properties. Since you have no children and there is no
evidence of a child conceived by Mr. Escaler with Ms. Zalderiaga, the earnings or any profits
that accrued from your properties will be forfeited in your favor.11 Furthermore, any succession
or inheritance that may occur between you because of your marriage are now revoked.12

You may also revoke the donations you made in favor of your husband, as well as the
designation of the latter as beneficiary in any insurance policy. Though for this revocation to be
effective, you have to register it at the register of properties. For the insurance policy, you have
to notify Mr. Escaler before such can be made effective. Additionally this will only be brought
within five (5) years after the decree of legal separation has been granted.13

Given that there was no evidence of you entering into any marriage settlement with your
husband, your property regime is the absolute community of property in accordance with Article
75.14 Upon the decree of your legal separation, your marriages community property will be
dissolved in accordance with Article 102. The dissolution requires the listing of all the properties
within your community property and thereafter the debts and obligations that you both contract
for the benefit of the community property and family or through the consent of both of you. In
case of insufficiency of your community property, both of you will be solidarily liable for
said debts. Thereafter, whatever remains as property or asset will be delivered to both of you
keeping in mind that Mr. Escaler cannot claim the profits of the community property.15

Fourth, a case for concubinage against your husband will also not prosper.
Concubinage is only present by either (1) keeping a mistress in the conjugal dwelling; (2) By
having sexual intercourse under scandalous circumstances with a woman not his wife; or (3)
cohabiting with her in any other place.

There lies insufficient evidence to prove that Mr. Escaler has violated any of the acts that
can be grounds for concubinage to prosper. There is no evidence that Mr. Escaler ever brought
Ms. Zalderiaga in your home. For the second case, although sexual intercourse may be proven to
have occurred, the problem lies in proving whether said sexual intercourse happened under
scandalous circumstances. Scandalous circumstances exist when (1) Mr. Escaler and his mistress
live in the same room of the house; or (2) they appear in public; or (3) perform acts in sight of

10 Id, Art. 63.

11 Id, Art. 63.

12 Id, Art. 63.

13 Id, Art. 64.

14 Id, Art. 75.

15 Id, Art. 102.

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the community which give rise to criticism and general protest. 16 It is therefore essential for there
to be witnesses to attest to said scandalous circumstances. Given that there is none, the case will
not prosper. Regarding the third cause of action, the sexual encounters were mere trysts and
under no circumstance did Mr. Escaler cohabit with Ms. Zalderiaga.

Lastly, the best criminal case we could file is under the Anti-Violence Against
Women and Children (VAWC) Act. Section 3(a) states that: Violence against women and
their children refers to any act or a series of acts committed by any person against a woman who
is his wife x x x which result in or is likely to result in x x x Psychological harm or suffering.
Psychological violence is defined in subsection (c) as acts or omissions causing or likely to
cause mental or emotional suffering of the victim such as but not limited to ... public ridicule or
humiliation.17

You can file a criminal case against Mr. Escaler under the Anti-VAWC Act for the mental
and emotional suffering you have incurred with a claim for damages against Ms. Zalderiaga on
account of her acts that caused injury upon you and the alienation of affection between you and
your husband.

For payment arrangements and other matters, you may reach me at 09178071793 or
sarah.ganto@gmail.com.

Very truly yours,

Atty. Sarah Rose T. Ganto

16 LUIS B. REYES. THE REVISED PENAL CODE CRIMINAL LAW: BOOK TWO ARTICLES 114- 367 909 (2012
ed).

17 An Act Defining Violence Against Women And Their Children, Providing For Protective Measure For
Victims, Prescribing Penalties Therefore, And For Other Purposes [ VIOLENCE AGAINST WOMEN AND
CHILDREN] Republic Act No. 9262, 3 (2004).