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
Hi Atty.
I have an affair to a married man but he has a written agreement with his ex-wife that they are free from each other to find a new partner.They are separated for 5yrs bago pa man kami magkakilala ng partner ko,pero may communication pa rin sila and saying that they are still friends…
They separated because of the reason na hindi sila magkaanak,nung una the exwife was nice to me,she even texted me and saying that we can be friends,she even want to meet me in person pero i didnt have the chance to meet her.
Until this 1st week of January the ex wife texting us(my partner)saying that she wants to get her rights as legal wife,that she could file a case against us and send us in jail.
Sir pls help me. Sinasabi nya sa mga text nya na ipapatanggal niya partner ko sa work niya at pde niya kaming ipakulong.
Ano pong gagawin ko?
Waiting for your reply Sir. Thank you and more power!
My best friend here in abroad had a wife left in Philippines, his contract was 8 months, he found out in her wife facebook her male cousin picture undress only boxer shorts wearing in their bedroom and then the main photo of her (wife) in his facebook, introduce to his son that it’s her Uncle, and stayed there for 3 weeks in their own house and now he felt frustrated about it, wife’s lying whenever they talked to phone. He wanted to file adultery when he comes back to Philippines and as of now he wanted to cut her allotment either
Question: Can he ask the agency to closed her allotment until he comes home?
Question: Then can he file adultery to both of them ( wife and cousin)
Thank you, pls reply back for help
Hi ATTY.
Please advice me if im doing the right thing.Weve been married for 13 yrs. now i had this problem with my husband he likes to explore his sexual fantacies with other women young and old and everytime i caught him that hes having an ellicit affair he will just say that its hes weakness and i have to pray for him so that it will be gone…as a wife im very paranoid in his wherabouts and it ignites fire that we argue and fight violently like physical…recently he was very mad at me coz i confronted his former mistress in a nice way but instead he hurt me physically and even pointed his gun towards me. it happened many times if we fight and my children saw everything.This time i filed a case towards him 9262 Violence againts women & children.Im very scared as of now on what the outcome coz he threatened me before if i will report the said incident to the police he will kill me.Next mos. im going back to the physcal office to follow up my case whom judge will handle….He did not went home for a week after the incident and texted our eldest that hes out of our family and wanted to stay away..Then suddenly he came back without any say…through text i told him that you should stand on what u said that u will no longer stay with us and i wanted to have space & time to think things then immediately that moment he took some pieces of his clothing and went out and never come back as of now i really had a hard time with my 3 kids coz im working..my big problem now what if he gets mad again esp. the case im filing im affraid he come back & kill of us.What should i do…
Hi attorney,
I need your advice; I have been married since I was 20 yrs. old when my girlfriend that time got pregnant. Though I know that time I still don’t have financial capability to get married, but promised to support the child. However my girlfriend family forced me to marry their daughter. We got married in civil and got 3 children in our 7 years of living together. Now we have been separated for almost 8 yrs. Though we are separated I have continued my support to my children, but sometimes I got forced to quit job so that times I could not give my financial support. Now I am working as seaman who works maximum 8 months. When I am on board I give my monthly support to my children, but whenever I don’t have no work and no pay I could not give the support to my children. My x-wife now is accusing me of not being a good provider to my children as I could not give at this time, though I promised that half my basic salary they will receive monthly. And whenever I come back from abroad I never skipped providing what they need. Now she is threatening to file a case against me and my girlfriend for 2 years. Though she is now leaving with a lesbian partner and my children together. Can you please help me and give me advise what case she can file against me and if I have any case to file against her. Also is being a lesbian can be a sufficient reason to file an annulment.
Thank you very much in advance.
Atty. What if my husband is at the other country and having an affair with her co worker chinese I want to know if what can I do so to them so my husband will sent home back to me.
Hellow poh
I’ve been married for 25 years, on 2007 I decided to get a job because my husband do not have a fixed or permanent job at that time when our eldest ( our daughter ) will be in college. So I decided to work, my daughter is now working and i’m working hard to send our youngest ( our son ) to college. Since I have been working, my husband still did not have a job until last November 2013. He is staying with his mother hen until now because it is near his work place. And when he started working I haven’t heard from him anymore… everytime I text him… no replies… everytime I call him… he doesn’t answer my call… and then a few friends told me that he has someone else in his life now… at last after pleading to him that we have a talk… he finally talked to me last December 2014… he confirmed that he has a GIRLFRIEND ( who has a son with another man ) and that we are better of this way… ….as I repled ” pano naging girlfriend yun eh may asawa kang tao so KABIT ang tawag dun… knowing na alam nyang may asawa ka ” ….. I was hurt badly specially when he told me na wag ko sila guguluhin 🙁 I went to my mother-in-law to ask her if she knows the situation that we are in now… and she knows… my husband and I talked with his mother and he said that he will fixed things up with the other girl and that he will talk to our kids about our situation…. I finally talked to my kids about what their dad told me… for the first time my kids cried and it broke my heart… after my confrontation with my husband…. again…. I haven’t heard from him…xmas passed.. new years passed…I tried to contact him thru texts and calls but to no avail… he even block me in his fb account 🙁 and the other girl also block me in her account 🙁 last week a friend told me that they we’re in baguio uuuhhmmm… MY QUESTION IS DO I HAVE THE RIGHT TO FILE A CONCUBINAGE CASE AGAINST MY HUSBAND??? to whom should I go and ask for legal advise…. where should I file the case and what documents should I prepare for filing this case…. I grew up in very family oriented environment that I hurt me so much on this attitude of my husband of what marriage is all about.. so sad that people now just don’t care anymore on the importance of the marriage vow and the morals it can leave the children… please help me.. badly needed A GOOD ADVICE… Thank you very much… Hope to hear from you really soon.. GOD BLESS !!!
dear atty.
i hope u’ll be able to read this though napakaraming sumusulat sa inyo.
Ive been married for almost 14yrs. And we have two children.Our eldest is12 yrs old girl and 3yr old boy. My husband had his first affair when our eldest was only less than a year.It was our nanny.I saw them hugging each other from our nanny’s bedroom.And another affair occured a year after.It was his officemate.And then a few more affair with our nannys.And the very recent is last July of 2014 until this time.His officemate.This is the longest affair he had.Id like to file a case against them.Please let me know what supporting documents should be considered and to file a case.Much appreciated.LF
Dear Atty.
Im married 18 year at nag loko ang asawa ko at nakipag relasyon sa Tibo. Iniwan nya ang mga anak ko at tumira sa ibang bahay na ipinapalabas na solo sya sa bahay at lihim na nakikipag relasyon sya sa Tibo. Ako ang umako ng lahat ng responsibilidad sa mga anak ko kahit nasa abroad ako at di ko pinabayaan hangang ngayon.
Gusto ko pong makipag hiwalay ng legal sa kanya dahil may GF na ako at i dont want to give her a chance na idemanda nya ako ng Concubinage.
Maari ko ba syang idemanda ng Adultery?
i want to file an annulment. What should i do?
thanks & best regards
Jin, this would require legal advice which, unfortunately, we cannot dispense in this Forum.
Atty Fred..
i am living with my boyfriend for over one year..i know that he is married in other country..they are already separated but not legally devorced..now his wife is contacting him again when she found out that his husband is living with other girl in other country.and she said that she will sue us with adultery.. can she sue us even if they are only married in australia and we are now in the philippines?? i really need to know.. thank you so much..
I would like to consult something. My friend has a husband who cheated her for a long time. It was the officemate of the husband whom he had extra marital affairs. The husband also was engaged in gambling which caused the husband to lie many times to the wife until all their properties were lost. As of the moment, the husband still continues to have an affair with the officemate. The wife now wants to take legal action and file a case against the husband. What could be the possible case to file? Thanks for the response.