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
atty pinay po ako may asawa po akong citizen ship in sweden 2 years na po kaming kasal may anak po kame ngayon na 2 years old na din po atty mahirap po ang buhay ko dito sa pinas since na nakilala ako ng asawa ko hanggang pinakasalan nya po ako atty ang problema ko po sa asawa ko minsan nag papadala po sya sa amen ng financial support sa anak namen minsan po 4 months to 6 months wala po syang padala sa amen atty ano po ba ang dapat kung gawin eh hindi kona po sya macontactes sa ph naawa po ako sa anak namen wala po syang pakiaalam kung saan kame nakatira ngayon maraming salamat po take care and god bless po
bonna
What if the wife hAd sexuAl affair with the husbands brother? And the husband was affected with std coming from the wife? What could be the legal grounds to be filed against the wife? After the husbAnd found out the sexual affair of his wife, he then found a girl later on, can the girl be called as mistress? Can the wife file a case against her knowing the wife first committed an affair?
Dear Attorney,
I want to sue my ex husband because he has a mistress before I left our country and I just found it out when one month ago, when I’m outside our country. Can I sue him even I’m not there in the philippines? Thank you
Anne, as a rule, the complainant must be present to execute the complaint or complaint-affidavit. In case of absence in the Philippines, there are a number of options, depending on the circumstances, which you can discuss with your lawyer.
I’m working abroad. I recently learned that my wife got pregnant by another man and she admit. Can this be used as a ground for annulment/divorce/legal separation? Can I have custody over our child?
Badong, in general, sexual infidelity is a ground for legal separation. Remember, however, that legal separation is different from annulment. Check the related posts, starting with this one: http://pnl-law.com/blog/annulment-divorce-legal-separation-in-the-philippines-questions-and-answers/
I recently found out than my father has 2 illegtimate children with his mistress and they were living in our old house. I wanted to file a concubinage case against them . What are the procedures ang what punishment will they get?
At the moment,my mother has no idea,what my father had done.. And i wnted to convince her to sue them.
Greetings Atty. I’ve been your follower just this week long. I consulted years ago about how to sue my husband for his unfaithfulness obtaining the evidences I gathered from emails and text messages coming from his other girl/s. But I ended up forgiving him for the sake of our son and because I wanted to save our marriage because I still loved him. Now, it’s different case .
My story: We are married for 8 years up to now. I discovered my husband’s unfaithfulness since I was 7 months pregnant up to last year (2014). He is seaman and I discovered his affair almost every year with different girls. After my husband fooled me many times , I fell out of love and asked him for a legal separation but he’s trying to find a reason against me about my decision. He accused me that I am having an affair with my officemate. He printed my Facebook conversation with my cousin regarding my feelings with my officemate- that I already love that guy and how he supports me financially and that he helps me finding a job (thru his referral) which is true. My office mate and I fell in love with each other but we know our limit of friendship that we are both taken and even if there is mutual feelings more than just friend, we chose the righteousness.. I also sent “I love you” message to my officemate thru facebook. He also discovered from my son that during his on board, that guy went to our home several times during occasions (with my mom around). he slept in our living room once or twice when that guy visited in our house but I told my husband that he is just a friend of mine. I couldn’t blame my husband if he thinks I cheated on him. But I explained to him that he himself is the reason why I’ve lost my trust and love for him. I told my husband my willingness to fix our relationship again and to try to put back all the way it was before but when he discovered about my officemate, he renounced me and didn’t believe my explanations. He commanded me and my mother to go and leave our home right away even after denying about his accusations.. He also demanded our child’s custody (who’s 10 years old) with an arrangement that my son will be studying and staying with him during weekdays while weekend is mine. He doesn’t also allow our child to spend his summer vacation with me because he want to stick with the schedule arrangement whether vacation or not- weekdays is his while weekend is mine. He also told me not to claim all my rights as his spouse (conjugal properties including allotment while his in abroad) and he’s demanding my share for my son’s necessities. It seems that he’s too demanding that he dictates all in his favor. I am afraid because he is threatening me that he will revenge. my officemate told me that my husband went to his company employer and revealed to the Board of Partners about our suspicious affair showing the printed facebook conversation as evidence. He also told this problem to all his family, to some of my relatives, to his friends, to the neighbors and to the school principal and teachers of my son. Now, I am living in my mom’s home. Our conjugal house was lived by my in-laws. Allotment is also received by my in-laws and my son is now living with them while my husband is on board. This really affects my dignity.
Queries: Does my husband has a chance to win if he sue me for adultery and can get me into jail?
If he file an annulment on grounds of adultery and was found guilty, will I still be sent into prison?
How about my child’s custody? What if he force my child to stay with him or with my parent-in-laws if he’s away? What should I do? How can I win my child’s custody?
Lastly, can I counter attack? Is there a chance for me to file a case against him? if yes, what would it be? does my office mate need to file a case against him? If yes and if there’s a higher chance for us to win the case, would my husband be permitted to go abroad during the trial?
Please help me with this.
Thank you and more power!
Mae
1.) Saan po kaya ako makapag file nang Demand Letter para sa mistress nang husband ko na nasa Philippines? Ano ang mga dapat kong gawin para kahit nandito ako sa America, mai serve ko sya nang Demand Letter? Nabasa ko po na sometimes mas mainam na bigyan nang Demand Letter ang mistress kesa mag file nang kaso.
2.) Gusto ko po na makakuha nang copy nang mga perang padala nang husband ko sa mistress nya sa Western U. Napakaraming perang nahuthot ang babaeng yon na nagtatrabaho sa bar.
Gusto ko pong bigyan nang leksyon ang mga babaeng katulad nya na walang delikadesa at immoral.
Please help!
hello po… married po kame ng 30 years at nalaman ko na may babae ang asawa ko. ginastosan na po sya ng asawa ko binilhan ng aircon at refrigerator. pwede po ba malaman kung pwede ko mabawi ang mga kagamitan na binigay ng asawa ko. ang recibo ng mga gamit na binigay ay nasa pangalan ng asawa ko po.
Dear Atty,
kailangan ko po ng tulong ngayon dahil may babae ang asawa ko at nagkaanak pa sila.di man sila talaga nagsasama ngayon pero ngstay ang asawa ko sa bahay ng babae sa laguna ng ilang arw sa isang linggo.Ano po ba ang pwede ko gawin?
sir…
ako po ay hndi ksal sking knakasama my 3 po kming anak. nagkarun po aq ng afair sa ibang lalaki..d q po alam kung legal ang ksal kc sabi nya po wlang merage contract..nsa abroad po ang aswa nya nung tym nto. .umupa po kmi ng kwarto at dun po kmi nagkkta.3 tymz a wik. .d po nmin tnutulugan un kc kailangan dn umuwe.my anak dn po xa. ngaun po.namaty po xa..at nalaman ang tungkol samin ng asawa nya.umuwe po. .tanung q po pwed pO BA aq kasuhan..?anung kaso naman po. ??handa daw po ung caretaker ng bhay magtestgo na nagkkta po kmi. .ipina brgy nya n po aq.help po asap lang po plz. .