Brief Discussion on Infidelity, Concubinage, Adultery and Bigamy

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:

Infidelity, Bigamy, Concubinage and Adultery in the Philippines

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]

P&L Law

322 thoughts on “Brief Discussion on Infidelity, Concubinage, Adultery and Bigamy

  1. AvatarJxjakdkakajxj

    what if for example, i’am already married, then right after my wedding i decided to go abroad and decided to marry a ____ citizen. Now, i am planning to get my kids with me. Will that be ok?

    Reply
  2. Avatarflor

    hi po, gusto ko lang malaman kung ano pwede ko din ifile na case sa ex wife ko na may 2 na Anak sa ibang lalaki. Pareho naman kami may kanya kanya na buhay ok nmn kami.magusap civil para sa mga bata. ngayon meron ako kinakasama at may 3 kami anak. inaamin ko na nagpAkasal ako ulit na hindi nadidisolve ang kasal namin. nagagalit sya dahil pinagamit ko ang surname ko sa kinakasama ko double jeopardy daw ang ginawa ko dahil nagpakasal ako. pero sya din nmn ay may kinakasama na at may 2 sya anak ano ang pwede ko gawin incase na magfile ng case ang magulang nya. kung guluhin ng magulang nya yung second wife ko ano pde ilaban ng asawa ko sa kanila?

    Reply
  3. Avatargracie

    Sir good day po.. tanong ko lang if pwde po ako magfile ng concubinage case sa neighbor namin ang yabang yabang kc pinagmamalaki pa niya sya may boyfriend na may asawa. Actually inaway nya ako nagscandalo sa sa haram nmin i was harass , talking foul words against me…. I planning to file case against her ” unjust vexation” para bumigat din ang kaso nya gusto ko syang kasohan ng “concubinage”.

    ano po a tangin nyo tama po ba ito?

    Reply
  4. AvatarKelly

    Blessed day,
    I am racquel,ang asawa ko po ay seaman. Last year contract ay nagkaaffair siya sa isang bar waitress hanggang pagbalik niya ng Pinas ay sila pa din ng babae ni. Isang Braziliana.. Natuklasan ko ang pagtataksil nila nuong pong mayo.. Nagkagulo kami magasawa at nangako sia na di nia na uulitin.
    July 2016 ay umalis muli sia pabalik sa barko at isang linggo makalipas ay ngkasama n nmn sila ng kanyang babae. Sa pangalawang pagkakataon ay naptunayn ko ang patuloy niyang pkikiapid at inamin niya ito.
    Dahil dito ay nais ko na siya pabalikin sa pilipinas at panagutin sa kanyang kasalanan.
    Puwede ko n po ba siyang kasuhan. Messages ng babae at pagamin nia ang hawak kong ebidensiya, photo ng babae na hawak ang bag ng asawa ko? Pano po ba ang dapat kong gawin para pagbayarin sia ng dalawang beses niya n pagtataksil? Pati mga anak ko ay nasaktan niya at nahihirapan sa ginawa niya sa amin pamilya. At may pagbabanta na di na siya magbibigay ng kahit ano suporta sa amin n pamilya nia.

    Reply
  5. AvatarLeah

    Gud afternoon .. Me and my partner were living together with 1 chirld for 9 almost 9 years .. Resently i found out that he has another women for 3 mos.now. he got an accident a month ago. He undergoes brain surgery.. When he was at the hospital, i found out about the other girl on his phone . There were lots of sweet conversations.. Now its been 2 mos since the accident .. My partner isnt fully recovered yet. But this girl keeps on chatting at him again .. Wat legal action do i have to do

    Reply
  6. AvatarMrVictoria28

    Hi,

    I just want to ask if how can i file and what case can i file to my ex wife who is cheated on me 2 years ago, she confested me that she had sex with her other man before and she choose that time for us to be seperated that’s why i had no choice but to let her go. Now that we are having both seperate lives with our current partners, she wanted me to sign the papers that she need for them to go to canada with our daughter, i refused to sign that because i don’t want my child to leave me, then my ex wife told me that if i will not sign that papers she will file a case against me and my current partner. For me she is so selfish right now, because we both know who is the one to blame before, that’s why we just seperated.. Pls.help me how can i get into this. If i we’re to file a case against her, what case should i file? I hope you can help me. Thank you very much!

    Reply
  7. AvatarAS

    My husband had been cheating on me for a little while. When we first separated, I thought we were just taking a break. Then he started telling me, that it was all my fault I didn’t show that I appreciated him, or showed him love. For a about a year & a half. I started thinking back & that was around the time I started questioning him about talking to someone else or seeing someone else. Of course he said no. Our phones are on the same bill so I logged in to our account & seen this one number that he was txting just about every day for a few months. Well I went back even further, to June of 2015. He finally admitted he had been “talking” to her since April of 2015. I eventually found out he had got a hotel roomy for them to meet. Twice that I know of. He kept telling me he wasn’t seeing her, & then finally admitted he does care for her. But he was not still seeing her. Which I knew was a lie. One evening I showed up at the place where he was staying & she was there. They hid her car so I wouldn’t think she was there. She admitted to meeting him at the hotel’s. Can I file adultery charges against him?

    Reply
  8. AvatarJeremy

    Dear Fred,

    My wife proclaimed us “separated” back in October 2016; however, she never moved out of my house. She wanted to remain living here instead of moving in with her mom. I wanted to work things out so I agreed she could live here. Since then she has been partying, drinking and smoking marijuana. All that she has openly admitted to. Also, she has openly admitted to committing adultery on two separate occasions with two different men. We have a child together and all I wanted to do is be able to work things out. She on the other hand does not. With this being said, we still occasionally have engaged in sexual activities, knowing what she has done.

    Because we still live together and because we still have had sexual intercourse since she admitted to the cheating, can adultery be used against her in court?

    The only reason I continued to have sexual relations with her was because I was doing everything possible to fix our marriage. Clearly there is nothing I can do to fix it. I never consented to her cheating but I guess the court may look at it as if I was pardoning her for her actions by continuing to have sex with her.

    What should I do? Can I do?

    Reply
  9. AvatarJJ

    Attorney, I would like to ask po if what case can be filed if it happens that an unmarried woman had and still have sex with a married man? ano po ba yung case na maifa-file sa babae? and for the married man? the woman is in UAE while the man also works in UAE and maybe parang may anak sila.

    Reply

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