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

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

  1. Avatardepressed

    Atty. fred,

    Hi! I know people might hate me here… but i hav this problem i need a lot help with. My boyfriend had been separated with his wife for 2 years now. Just a year ago our relationship started and now we are about to have a love child. what then will be in store for us? what should i do? he is also asking me to live in with him now. I am afraid that his wife might find out although she’s working overseas. Please help…

    Reply
  2. Avatarbabyally

    Dear atty.
    My partner and i having a problem, 5 years ago i met my partner abroad, he told me he’s married but his wife left him for a Japanese guy, my partner and his wife is not legally separated nor annulled but the girl got married with the Japanese guy here in Philippines were she got married before with my partner, it is so confusing how did it happened, but of course they said “money matters”..
    Now me and my partner have a son which is i thought will be ok coz they had a verbal agreement before that none of them will go after with each other, about a couple of months ago the wife suddenly want her husband back coz she is now divorce with the Japanese guy,and because i love my partner so much i was trying to win him back but the wife said she can file a case against me…
    I just want to know what is the best thing i could do in this situation of ours.. Thanks and more power…

    Reply
  3. Avatarcathie

    Sir,
    Paano po if naka-file na pareho ng annullment ang 2 tao sa kanila respective husband & wife. At nagsasama na sila. Concubinage or Adultery pa ba iyon? Ano po ang maissuggest niyo sa ganon?

    salamat.

    cathie

    Reply
  4. Avatarklaus.lund

    HI !
    One question ???

    I am that lucky to have a philippine girlfried (with philippine passport), we both live in Denmark and she is devorced from a danish man.
    They got married in the philippines, and they are divorced in denmark ( meaning that the danish man has a legal divorce, and are able to remarry ).
    What are the procedures, in order to get the divorce reconiced in Philippine, so thar she can optain a legal remarrying ( under the rules in EXECUTIVE ORDER NO. 209
    THE FAMILY CODE OF THE PHILIPPINES – Art. 26 and (as amended by E.O. No. 227, dated July 77, 1987)

    Klaus Lund

    Reply
  5. Avatarimabee

    good day!

    my husband is having an affair with his officemate for 4 years now. it came to my attention only this week. i want to file a case against them. what evidences should i present? is audio confirmation enough?

    in addition, if proven guilty, what are the penalties under the law? imprisonment?

    Reply
    1. Avatarjames

      dear atty fred,
      pde po bang kasuhan ng adultery ang ka live in lang nakiapid…
      20 years na po kming nagsasama nung nag abroad ako nakiapid po ung asawa ko pero hindi kmi kasal…
      ano po bang pde kung ikaso sa kanya….

    2. AvatarJun

      dear atty fred,
      sakasalukuyan may kaso akong bigamy, 2010 pa ito at ang nag sampa ay ang pangalawang asawa. may 4 na anak po kaming binubuhay, hangang sa ngayon magkasama parin po kami at sya rin pinag sisihan nya. 6 na taon na po ang nakalipas wala pa rin pong resulta alam narin po ng fiscal ang boung katutuhanan at civil registrar. ano po ang puede nyong maipayo para madismiss ang kaso na bigamy po.

      maraming salamat po.

    3. AvatarAj

      Good day!

      I was pregnant by my ex boyfriend but he did not acknowledge it since I gave birth. Now, he want us back but the problem is he had a girl who is married and the girl is pregnant by him but he wanted to only support the child but the girl is trying to black mail my ex boyfriend if he will not give want she wants. What will be the case will be filed to him and the girl? What is the rights of my ex boyfriend? Can he only support the child but not the girl?

      Thank you and God bless!

    4. Avatarcess tolentino

      Hi Atty,

      Hope you could enlighten me.

      So my friend got his ex-girlfriend pregnant, however this girl is married to another man but was separated about 10 years already with no legal separation. As per ex-girlfriend, this was an act of abandonment. Now going back, the girl has been demanding for a child support from my friend since he gave his last name to the child. the question is : 1. is it legal that my friend’s last name is used by the child even thou the girl is still legally married to another man.

      thank you

    5. AvatarBad Daddy

      Sir, in my own opinion, either of you and your live in partner have no rights to file any of legal actions even though you’re living together for 20 years because you’re not legally married. As far as i know, those grounds is only for legally married couples only.

  6. Avatarforgottenwarrior

    hi i would like to file for annulment of my marriage. we were married last oct 2006. i left him because of his habitual alcoholism, he refuses to find job and beacuse of third party. we are now living separately for more than 2 years. he on the other hand denies he is having an affair with another girl, but i found out that they now have a 6 month old son. i also have a picture of him together with the woman and their son.

    Should i file for concubinage first or go ahead for annulment? Please Advise.

    thanks,

    Reply
  7. AvatarMaria

    Atty. Fred,

    If my boyfriend’s case does not seem to fall under any of the grounds for annulment indicated in the Family Code, is there no chance we can make our relationship legal?

    He is married and has 2 kids and i accept that our relationship is a result of him falling out of love for his old and lazy wife. Though I love him unconditionally. Right now I am in Manila, he is working in UAE and his family in the province. He is still supporting his family financially. But things are different now that I am leaving for the states and I can’t take him with me because he is married. I still want him to get annulment first to be safe.

    If for example, he files for annulment, knowing that we are on a long-distance relationship, but we have had intimate relationship before (secretly) when he was still here, will it be an opening for an adultery case to him? Will I get involve in that case as well?

    This is very difficult and I hope that you can reply to my message soon. If so, can you help me, or us?

    Reply
  8. Avatargingersnaps

    dear atty.,
    i’ve been married for 17 years and have 5 kids. Recently my husnand left us for another woman. He is now living on the girl’s house. What should i do? For the sake of my kids, can i sue them? What legal actions should be taken?

    Reply
  9. Avatargingersnaps

    dear atty.,
    i’ve been married for 17 years and have 5 kids. Recently my husband left us for another woman. He is now living on the girl’s house. What should i do? For the sake of my kids, can i sue them? What legal actions should be taken?

    Reply
  10. AvatarPhil-chi

    Atty.,
    I just want to ask what are the grounds/proofs for a person to be guilty for concubinage crime?

    Thank you!

    Reply

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