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
Magandang araw po!.
Nong ang ate ko ay nangibang bansa, may naging kirida ang asawa nya, at nong umuwi sya dito nakipag hiwalay ang ate ko pero hindi sa legal na paraan, bumalik sa ibang bansa ang ate ko, samantalang ibinahay ng asawa nya ang kanyang kirida sa ibang lugar. Nais po naming magsampa ng kaso upang mawalan na ng karapatan ang kanyang asawa sa kanyang dalawang anak sa ate ko, ano po ba ang dapat naming ikaso? , may puruhan po bang manalo kami, at ano ano ang mga ebidensya na dapat naming ibigay?
Atty.,
what will be the best advice if the woman caught his husband’s phone that someone is calling and it is a woman. then after she answers the phone the other line immediately cut off. then the wife assumes that her husband is cheating and file a divorce in Canada but they got married her in the Philippines. I know it will not prosper in foreign country so what will be the best advice? is it annulment? or legal separation only? Thank you.
Hi atty, my mom passed away in August 2010. Bago pa yan same year nahuli na nya ang papa ko at mistress sa bahay ng babae kasama ang noon brgy chairman at counselor ng brgy. Pinatawag sila sa brgy pero hindi sumipot ang papa ko at mistress nya. Meron silang anak na sa tancha namin ay pinagbubuntis ng babae nung nahuli sila. Pwde po ba namin ipagpatuloy ang nasimulan ng mama namin at idemanda sila kahit wala na mama namin? We are also being emotionally abused by his mistress and him.
Sir, Can I ask a help about this case.? Just part of our independent task. I think I must have to ask experts about this situation. Thank you
Andria, 18, is married to her long-time boyfriend, Mark, 26, before the city Mayor of Bacolod City. After 5 years of being together, the marriage turned sour. And Mark was said to have a clandestine love affairs, his Secretary Terresa and Andria’s bestfriend, Britney.
Andria decided to file for a divorce on the ground that the marriage was void since no parental consent was secured before the marriage took place. And a concubinage case against Mark because of severe womanizing.
A. Can Andria file for a divorce? If not, what do you think is the available recourse for Andria?
B. Is it true that the marriage was void because of lack of parental consent? If so, what are the requisites of marriage?
C. How do you call the type of marriage between Andria and Mark? A monogamous? Or a polygamous marriage? If so, what are the types of marriages?
Sir, Can I ask a help about this case.? Just part of our independent task. I think I must have to ask experts about this situation. Thank you
Andria, 18, is married to her long-time boyfriend, Mark, 26, before the city Mayor of Bacolod City. After 5 years of being together, the marriage turned sour. And Mark was said to have a clandestine love affairs, his Secretary Terresa and Andria’s bestfriend, Britney.
Andria decided to file for a divorce on the ground that the marriage was void since no parental consent was secured before the marriage took place. And a concubinage case against Mark because of severe womanizing.
A. Can Andria file for a divorce? If not, what do you think is the available recourse for Andria?
B. Is it true that the marriage was void because of lack of parental consent? If so, what are the requisites of marriage?
C. How do you call the type of marriage between Andria and Mark? A monogamous? Or a polygamous marriage? If so, what are the types of marriages?
My wife is having an affair with another man. We have 3 kids, she’s no longer living with us. I have photos of them together, can I file a case in court?
Hi! My husband cheated on me with his officemate.he admitted it and i have a proof in his emails of their affair.can i use that in filing a case against them?what specific case will i file?can i also file a complain in their office?
My wife has having affairs with man working in abroad,but my evedence is only is few text messages on Facebook account with her boyfriend,how can I file a case with her and her boyfriend…….
Hi there Atty! My ex-wife and I agreed for the financial support of my daughter who is under her custody. The moment that we’ve talked about that, her untie and both my parents were present. I am presently living with at my parents house. The fact is that I have a special friend who lives from another province and we see each other from time to time. Sometimes on a weekend. My ex-wife got a hold of my ‘Special Friend’s mobile number and started to text her mother that she (ex-wife) will accused her of concubinage. Is this possible? knowing that the factors for concubinage is not present here in my present situation? Kindly respond to my situation so that I know what I should have to do. Thank you
hi sir,
nais ko lamang pong humingi ng legal advise about sa case ko.
thank you
Dear Atty Fred,
Proffessor po ang husband ko sa isang college University sa Pampanga.
Dito po kmi nakatira sa Pangasinan,samantalang ung husband ko po ay may apt.sa Pampanga.
May karelasyon po siya na student niya,inamin na po skin ng husband ko at ganun din po ung girl.
Nagkikita po at lumalabas sila ng student niya,may times din po na hindi uuwi ang asawa ko sa Apt.niya at kasama niya ung student na un.
Do i need to file concubinage sa husband ko po?
Pls.Help me po atty.
Thanks