We previously noted that infidelity is not, by itself, a ground for annulment, although it could be a basis for legal separation or filing a case for adultery/concubinage. As to custody, the Supreme Court already ruled that sexual infidelity, by itself, is not sufficient to grant custody over a child. Let’s continue the discussion on these concepts:
What is concubinage?
Concubinage is committed by any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place (Article 334 of the Revised Penal Code or RPC).
What is adultery?
Adultery means the carnal relation between a married woman and a man who is not her husband, the latter knowing her to be married, even if the marriage be subsequently declared void (RPC, Article 333). Each sexual intercourse constitutes a crime of adultery.
Adultery vs. Concubinage
1. Adultery is committed by a wife (who must also be charged together with the other man), while concubinage is committed by a husband (who must be charged together with the concubine).
2. Proof of sexual intercourse is enough in adultery, but in concubinage, the prosecution must prove that the sexual intercourse must be under scandalous circumstances, or that the husband kept a mistress in the conjugal dwelling or cohabited with her in any other place.
3. The penalty for concubinage is lower than that of adultery. The penalty for the concubine is only destierro, while the penalty for the man other in adultery is the same as that of the guilty wife.
What is destierro?
Destierro means banishment or only a prohibition from residing within the radius of 25 kilometers from the actual residence of the accused for a specified length of time. It is not imprisonment. [See Destierro: Definition, Nature and Jurisdiction]
Who can file the action for adultery or concubinage?
Only the offended spouse can legally file the complaint for adultery or concubinage. The marital status must be present at the time of filing the criminal action. In other words, the offended spouse must still be married to the accused spouse at the time of the filing of the complaint.
Who must be prosecuted?
The offended party cannot institute the criminal charge without including both guilty parties (the offending spouse and the paramour), if both are alive.
What is the effect of consent or pardon by the offended spouse?
The criminal charge cannot prosper if the offended spouse has consented to the offense or pardoned the offenders. Pardon can be express or implied. An example of express pardon is when the offended party in writing or in an affidavit asserts that he or she is pardoning his or her erring spouse and paramour for their act. There is implied pardon when the offended party continued to live with his spouse even after the commission of the offense. Pardon must come before the institution of the criminal action and both offenders must be pardoned by the offended party.
What is bigamy?
Bigamy is basically the act of marrying again while the first marriage is still subsisting. It is defined under Article 349 of the RPC as the contracting of a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceeding.
What are the elements that must be proved in a prosecution for bigamy?
In a case for bigamy, all the following matters or “elements” must be shown by the prosecution:
- 1. The offender has been legally married.
- 2. The marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code.
- 3. He/she contracts a second or subsequent marriage.
- 4. The second or subsequent marriage has all the essential requisites for validity.
What is the effect of a pending petition for annulment or a declaration of nullity of marriage on a criminal case for bigamy?
We already have a previous discussion on this. Please click here.
How is bigamy different from adultery/concubinage?
In adultery/concubinage, the law requires that both culprits, if both are alive, should he prosecuted or included in the information. In bigamy, the second spouse could be charged only if she/he had knowledge of the previous undissolved marriage of the accused. Bigamy is a public offense and a crime against status, while adultery and concubinage are private offenses and are crimes against chastity. In adultery/concubinage, pardon by the offended party will bar the prosecution of the case, which is not so in bigamy.
What if I killed or injured my spouse when I caught him/her in the act of committing sexual intercourse with another person?
The law provides that “any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro” (RPC, Article 247). The accused spouse, which could be the husband or the wife, must prove the following:
- 1. A legally married person (or a parent) surprises his spouse (or his daughter, under 18 years of age and living with him), in the act of committing sexual intercourse with another person.
- 2. He or she kills any or both of them or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter.
- 3. He has not promoted or facilitated the prostitution of his wife (or daughter) or that he or she has not consented to the infidelity of the other spouse.
The accused must proved that he/she actually surprised the other spouse in flagrante delicto (or in the act of doing the deed), and that he/she killed the other spouse and/or the other party during or immediately thereafter.
[Sources: Revised Penal Code; People vs. Nepomuceno, G.R. No. L-40624, 27 June 1975; Pilapil vs. Ibay-Somera, G.R. No. 80116, 30 June 1989; Ligtas vs. CA, G.R. No. L-47498, 7 May 1987; People vs. Puedan, G.R. No. 139576, 2 September 2002; People vs. Bastasa, G.R. No. L-32792, 2 February 1979]
- Extension of Filing Periods and Suspension of Hearings for March 29 to April 4, 2021: SC Administrative Circular No. 14-2021 (Full Text) - March 28, 2021
- ECQ Bubble for NCR, Bulacan, Cavite, Laguna and Rizal: Resolution No. 106-A (Full Text) - March 27, 2021
- Guidelines on the Administration of COVID-19 Vaccines in the Workplaces (Labor Advisory No. 3) - March 12, 2021
sir/mam can you help me
my wife is in skorea to work there and left me and our 4 children in the phillipines recently she msg me in skype saying that she is living with someonelse and we are finished
i msg her friends and they confimed it and told me the name of the person living with her
is there a legal actions i can file againts her?
can i file an adaulery case?
or can i have her deported back in the phil.?
right now shes ignoring my call or msg to her
My bf is married and have child with his wife.tgey are still living together.but y bf and i still seeing each other secretly and still communicating everyday on the phone.the wife send me message that she file a case againts me and my bf.is there any way that she cant accuse me?she caught my email to my bf.i love my bf..
hi! im ciani anu poh bng case ang pwede kng ikaso sa bf q… nabuntis nta poh aq now im still pregnant 6months na poh… tapos nalaman q na may kaleave in na pala sya ng 8years… tinangap q poh ang sitwasyon pero pinapabayaan nya na poh aq ngaun… anu poh ba ang dapat kng gawin?
Dear atty:
my problem is…my husband left me because of this women start the problem year 2013 he met this women in pilipino store at doon po nag simula ang affair nila na find out ko lang na they’ll living together only March 2014. ang tanong kopo ay ano po bang kaso ang pweding isampa sa dalawang ito?? dahil ang babae ay married din with 3 children at ang asaw2a ko naman po ay hindi nag susustento sa obligation sa mga bata.ang babae po ay contract worker as a live in care giver.pwedi po bang malaman kung anong charge ang pweding ibigay sa ganitong mga tao.
maraming salamat po
yvon
Good day,
Gusto ko lang po makahingi ng tulong sa inyo.. i am married for more than 23 years i have 2 kids..just last month nalaman ko po na me babae asawa ko.. yong babae nya nasa us me asawa din. Me mga pics po ako na magkasama sila at me naghahalikan pa..nasa bahrain po ang asawa ko..nangyari po umuwi dito pinas babae at asawa ko naman knowing nasa bahrain cya pero dito rin pala pilipinas ng more or less than a week at magkasama sila ng babae..ang tanong ko lang po e ang pic po bang selfie nilang 2 at me naghahalikan pa e evidence ko na po ba yun para kasuhan sila.. me asawat pamilya din po yong babae nya sa us..at ngayon po nalaman ko nagaapply cya us visa as a tourist..ano po ba pde kong gawin para i pa hold cya sa us embassy? Really need ur advise po maraming salamat po.
Pa ano po kung niloko lang ng lalaki yung babe na sya ay binata. Sa matuwid po nag ka roon sila ng relasyon bilang mag bf/gf may kaso parin po bayon at kasama po ba sa kaso ang babe.kahit na hindi nia alam.sa una nalaman nia lang late na. Ano kaso po ba papasok yon?
Thanks
In concubinage, to file a complaint against the cncubine, does the husband must be convicted first or an arraignment must be made against the husband? What if the ering husband died and no case was file against him, can the aggrieved wife file concubinage against the concubine?
hi…
my husband is working for a contractual job, in Swaziland South Africa, she had an affair with another Filipina working on a manufacturing company there, they were living in one house../my husband told me that she really wanted to break up with the girl ..but the girl go hysterical and threatened him to make scandal on his work place.. and even threatened my husband that she will kill herself and make my husband put in to jail .. what will be the best thing to do to make the girl stop threatening my husband.. she is a regular employee in that company.. pls help me.
Atty,
mpapawalang bisa po ba ang naisampa n kasong concubinage sa asawang lalaki na nagkaroon ng 3 anak, kung ang asawang babae ay nagkaroon ng ibng karelasyon pero hnd ito nagtagal?
HELLO,pasensya na po kung tagalog yung tanong ko..
Ako po ay may asawa at kasal po kami ng 8 years na may dalawang anak (2 yrs old at 8 yrs old),mag 3 yrs na ako dito sa abroad at nag loan po ako ng woth 1m pesos dito sa qatar upang makapag down ng 380k pesos sa bahay. nakuha po namin ang bahay noong march 2014 at march 2015 ang monthly payment promo. Ngayon po nag-lihim ang aking asawa noong september 2014, nag tapat sya sa akin sa chat messages na 3 months na silang nag uusap at nahulog ang loob nya sa isang foreigner na nakilala nya sa isang online dating site, wala pa naman physical contact na nangyayari, panay pangako lang na gagawin daw lahat ng kano para ikasal sila pag uwi nya sa febraury 2015. ngayon ang aking misis ay nakatira na sa isang condo unit kasama ang bunso naming anak, at nagpapadala ang foreigner sa mga pangangailangan nya. ang isa namin anak ay nakatira sa bahay na binabayaran namin kasama ang kanyang mga magulang. masakit man na ihayag lahat ng problema na nangyayari sa buhay namin kahit napatawad ko na sya sa ginawa nya pilit nya na po talagang sinisira ang pangarap namin mag-asawa wala ako pagkukulang sa kanya at lahat ginagawa ko para sa ikagaganda ng buhay nila, may pagkakataon na di nagkakaunawaan dahil mahirap po talaga ang komunikasyon ng OFW lalo na at iba ang oras at malimit ang trabaho, pero di naman po siguro ganon na lang basta na isusuko na lang ng misis ko ang aming matatag na pagsasamahan sa loob ng 8 years naming pagsasama.. ngayon uuwi ako ng december 23 2014 to january 10 2015, pra magbakasyon sa pilipinas at nagbabakasakali na maiayos ang lahat sa tama… pero disidido na ako na sampahan ng kaso ang aking asawa ng pangangaliwa, ano po ba ang dapat na ikaso sa kanya at ano po ba ang aking mga karapatan na makukuha? at meron ako mga katibayan sa chat nya sa cellphone at mga remittances na naipadala ko noong 2012 hanggang sa kasalukayan.. sana po matulungan nyo ako sa aking problema.
(at kung sakali man na maituloy ko ang aking demanda, posible po ba na makahanap ako na magpapatuloy ng aking kaso? dahil ilang linggo lang po ang itatagal ko sa pilipinas) salamat po muli. :-[ – Glenn