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
Dear atty,
My friend had a case in the Philippines Staffa, she lefted Philippines in order to pay her credits. The husband having now another woman and they have 2 children, and my only child daughter living with my husband and the mistress , but they are not treating properly my daughter especially finanacial.. As long as they feed everyday that’s it…. Now is my friend family can file a case? If not because need my friend appearance, is the family of my friend can demand separate alotement since her ex husband is a seaman … Only alotement for her daughter .. Can we file complain to POEA???
Thank you.
I see this is a very old post but i was wondering the law surrounding a woman who tells me she has split from her husband but cannot afford an annulment. I am looking at buying property (condo) in phillipines and wondered if i provided that home for her and her children what are the laws surrounding my property ? Also what are the laws surrounding her husband ? is it still adultery even they are no longer together ?
Dear Atty,
I am married and we have a daughter. Im working in Dubai and my husband is in Canada and our daughter is in the philippines. Out of the blue my husband stressed that he applied for a divorce in canada without any reason and my knowing. My husband owed me a lot of money that debt me alot and tied me here in Dubai.
He is not also regularly sending allowance to our daughter and not also minding helping me pay the loans i have which he used in applying for canada.
Now, divorce is there.. and another revelation that he will be having a son. He has a gf in canada and currently pregnant thats y he will divorce me.
My husband is only 1 yr and 2 months in canada.
I already ask the help of the both consulate but i didnt get a good respond from them.
Please can u help me. Find ways on how can i chase my husband from his responsibilities n obligations to us..
KAYE
Just wanna ask what case would be valid to file against my husband he confess to me that his mistress is pregnant and he is giving financial support.We just got married on thru civil wedding here in manila i’m so confess if our marriage is valid since we did not married in church.
I just want to know my rites as his wife although he has no plans of living me i just wanna know if I’am
entitle to any legal actions should the pregnant woman is enough to file a case, Iam really need your
comment on this..
Thank you
My friend is married and divorce case is pending in the court .Since my friend is getting old,he likes to have a child through an unmarried girl.Will it be counted as bigamy?What are the legal problems he has to face after the child birth?
Dear,Atty.
Hiwalay n po kami ng asawa ko 3 years n po,pero kasal po kami year 2010.now my asawa at anak n po sila 1 y.o n po yong bany nila.pero my anak din po kami she is 6 y.o,nong naghiwalay po kmi nsa knya po yong anak nmin,pero ngayon po kinuha ko n po s kanila kasi nong ng vacation po siya samen yong anak ko nagsumbong po sa akin n pinapalo at sinasabunutan po siya nong step mother niya..tapos last po day nagtext po ako don s asawa ko n magpadla siya ng sustento s anak ko,pero sabi po nong girl makapal daw po mukha namen,ayaw po kasi magbigay ng sustento nong tatay niya,e pano po yon kami po ang legal diba po mas my karapatan kami .
Advice naman po please
Dear Atty.
Good day!
My husband is working in Paris and it came to my attention that his having an affair with a filipina also in the here, in the Philippines for 5 years now. But still my husband communicating with me. I want to file a case against them. What evidences should i present? I want them to be block in the embassy. Coz My husband will go home and the will girl go with him Manila.
If i will file the case against them will the embassy of France send them back here in the Philippines to face the charges?
If in case my husband will ask forgiveness and i will forgive him what will happen to the other woman? will she face the consequence alone? and if in any cases i will also forgive her is there anything in the law that will prohibit her from coming near to my family again?
Thank you much. I hope and pray to hear your answers soon.God Bless!
Inalme
Hi I would like to ask what case i can file to my husband just recently got the papers from NSO that he was married. Its been 3 yrs since we never heard anything from him, not even allowance to my daughter hes not giving. He just abandoned us for nothing his parents also not tellin us where is he.
Hi
My husband of 18 years is working in the Philipines. In to 2012 he a child with a woman there i live in South Africa. She contacted her and told her he was married and she was shock so I forgave then and thought we had moved on. She told me she was now married to another man and they share a son. to may amazement found out they have just had another child. What leg do I have yo stand and how can I contact her or take actionwhat are my right as this mans wife
Thanks
Dear Atty Fred, my son-in-law is a member of the US Armed forces and was stationed in Korea for 9 months, during this time he meet a Phillipino B_____h and began having an affair. His wife and 3 children were stateside. The soldier told his wife that the B—-h was pregnant, however has since lost the child. The soldier is now asking for a divorce so that he can bring this native Phillpino B—h to the US. Here is the problem this person is married and has a husband and 4 children in the Phillpines and is working in Korea as a barmaid. This person has harrassed the wife and is calling herself Mrs. B. I am contacting our state department to try and block her request to enter the US. What can be done from your end. I also know that the Husband in the Phillpines has talked about committing suicide because of this problem. Your response would be greatly appreciated.