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
yung kuya ko po may asawa na dati kaso yung wife niya po nagka anak sa ibang lalaki 1year old na po baby nung wife niya sa ibang lalaki.. ngayun po yung kuya ko may gf na gusto niyang magpakasal dito sa new gf niya kaso kasal siya sa una asawa na may anak na sa ibang lalaki anu po pwede niya gawin? kasi mahal po ang unnalment . ilang taon po ba pwede makasal ang legaly separated?
sana po mapansin niya po ang aking katanungan…
maraming salamat po.
Hi,
I would like to ask if I could file for concubinage against my husband if he lives in Seattle, Washington, USA. He is living with his mistress and they have two children which I just happen to know last year. Their eldest is 3 and a half and the youngest is about 2 yrs of age. We also have two kids; a teenager boy and a 6 yrs old girl.His mother knows about this affair. Can I file a case against his mother as well? I am presently here in the Philippines and I would like to know the procedure and how much it will cost me if I do this action. Please advise. Thanks.
Hi.. I just t oo ask for help..my uncle is working in Dubai he already had an affair with a pilipina there..and the girl was already pregnant ..my aunt always crying and don’t know what to do… She wants to put her husband un jail.. How can we make it..
Hi Atty
this is my situation
me and my partner are not legally married but we have 3 kids.my partner is married to his ex husband and later on were together for almost six years until i found out that my partner is having affair and having sexual intercourse to other man. what case i can file for both of them?
Thank you so much..
I have a friend and she was with a live in partner for 9 years and they had 3 kids. The guy is usually involved with women and finally has a secret second partner. My friend found out and they got separated. They are no longer living together and went separate ways. But she also has taken physical abuse in the process and has a past dated medico legal for proof. She and her kids also get this kind of abuse from the partner. The guy has never supported her and her kids or even gave their belongings after they separated. Not only that, the family of the guy is also slandering ang spreading scandalous rumours and to defame my friend in different medias. The ex partner is now living together with the second partner and is also coniving to defame my friend even if is she no longer want any part of her ex. My friend is afraid of losing custody of her kids because they also get abused by the ex partner.
What case can my friend file against her ex since he still continually does scandalous actions to defame my friend in different medias?
What rights does the ex have for childrens custody claims?
Dear Attorney, I just want to seek help from you who is knowledgable to this kind of cases. Sir I discovered my husband cheated on me. The age of my husband is 51 and his new mistress is 23 years of age just like our daughter. Recurrently Sir I discover that my husband and his mistress had already a newly born baby. Sir I’m so depressed about what happened. My husband and I were continue fighting. And he want us to be annul but I said no. I disagreed about his decision because I love my husband. We were married and he’s mine only. I want to share my husband with others. Please Sir need some advise from you. What is/are the right thing to do against my husband. Do I need to file a case against him like concubinage? Whatever will you advise to me, I will really appreciate and thank you.
Can daughter file Bigamy vs. Dead father and bigamous mistress, who is still living and has all of her dad’s money and properties?
Will the scheming mistress go to jail?
Can daughter still get back her father’s estate?
PS: Wish you’d reply ASAP.
Good day! In my case, my husband and I were separated since 2010, ive been pregnant with my boyfriend only this year.He has also a girlfriend.but a married woman.this summer he took his vacation in the house of that woman and with our son.
I’d like to know, I think my husband would file an adultery case against me.What actions would I take first?
Dear atty.
I only have some questions about a man don’t wanna go back to his wife again because of some reasons.
The husband discovered that his wife cheated him because their youngest son died because of an accident he went home and the moment he arrived he noticed that his wife is pregnant about 5-6 months but he is sure that his wife got pregnant from other guy because they don’t have contact because he is working in manila and his wife and kids living in certain province.
The guy decided to go back to his work again but before that he confronted his wife in a Barnhart together with the officials because he want to settle an agreement that they will not bother to each other but he will support their kids but no longer his wife because she cheated .
After several years the husband found another woman and they have 1son but the wife is bothering them and threatening that she will accused her husband because of having another family.
Is it possible for her to do it ? infact,her son from other guy is already 8 years old and her husband’s son is only 4years old?
Her husband also never stops supporting their kids until now.
What are the best thing to do to this certain situation?
Thank you and more power…
Atty Fred..
Good day po..please help me atty..
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 me here in the philippines and she said that she will sue us with concubinage.. can she sue us even if they are only married in australia and we are now in the philippines?? And i am living in my boyfriends house now na ang sabi nya ay conjugal property daw..may katibayan po ang boyfriend ko that he build this house with his own money only.. masasabi po bang conjugal property ito kahit hindi naman cla kasal sa pilipinas? At may mga witnesses po kami na nakabasa sa txt nya nung time na babalik na sa australia yung boyfriend ko..ngtxt po xa ng life is good without you at marami pa xang post sa facebook na it feels good to be free and single again… sana po masagot nyo po ang mga katanungan ko..i really need to know.. thank you so much..mghihintay po ako sa inyonf reply.. God Bless..