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 Fred,
Please enlighten me on this issue.
Husband and Wife decided to separate after failing to reconcile. During the first reconciliation attempt, the two didn’t reconcile, the husband asked for the temporary custody to be given to him since the wife will go back abroad. The wife agreed (signed an agreement) because she is going abroad anyway but without knowing that the husband is already living in with his new girlfriend. When the wife knew that the husband is living in with his girlfriend, she changed her mind and would like to have the custody of their three children aged 9,8 and 6. Since the mother is going abroad, she decided to leave the three kids under the guardianship of her single older sister.
With the presented situation;
1. will the mother get the custody of her children despite her going abroad on the grounds that the father already has a new partner?
Your guidance will be highly appreciated
Hello. I just want to ask if I can file for libel to someone who claimed that she is the wife of my boyfriend. She posted my name in her status in fb that says I am his husband’s mistress. She also included my family’s surname in her post and randomly sent messages to my family. She even threat that she will file a case against me. Is this a case of defaming? Can I file a libel if she continues defaming me?
good day attorney
i am in saudi now..and i found out my husband have an affair to other woman..and the girl now is pregnant..what should case i can file for him and to her mistress..
Hi good day. My boyfriend has a daughter dun sa ex girlfriend niya (ex live in partner). 3years ago naghiwalay sila dahil hindi sila magkasundo at lage nag aaway at madalas nauuwi sa bugbugan (nagbubugbugan sila at si girl nagbabasag daw ng gamit). A year ago, naging kami ng boyfriend ko ngayon. Since then hindi na kami tinigilan ng ex live-in partner niya kakamura samin lalo na sakin at kakahingi sa bf ko ng mas mataas na amount ng sustento (2k weekly or 8k in 1month). Sabi pa niya mag aaral na daw ung daughter nila and kung saang school niya gustong pag aralin ung bata, kailangang paghirapan ni bf dahil bilang ama obligasyon daw niyang ibgay ang needs nila ng mga bata. Yung bf ko hindi nakinig, since hindi naman ganun kalaki ang kita niya. instead 2k weekly pa rin ang pinapadala sa ex live-in partner. Until 1time nababanggit na ng ex-live in partner ang pagsasampa ng kaso para sa bf ko (RA 9262) and para din daw sakin dahil alam ko daw na pamilyado na pero nakipagrelasyon pa rin ako. Gusto ko lang sana itanong, 1.) posible bang masampahan ung bf ko ng kaso kahit na nagpapadala naman siya 2k weekly? Hindi ba un kasya para sa expenses ng bata, kung equal sana ang share ng nanay at tatay, makakabuo ng 4k weekly. 2.) wala bang law para sa kahit sino (lalake man or babae) ang nagpoprotect sa mga taong nabablackmail or hinihingan ng mas malaking amount para sa anak or else sasampahan ng kaso kapag di nasunod ang gusto? 3.) posible din kaya talaga na masampahan din ako ng kaso for having a relationship with my bf na may anak nga pero hindi naman kasal, at sinusustentuhan naman ung anak nila? Thanks po sa mga sasagot
Dear atty
im legally married for 10 years
Ang asawa ko ay maulit ulit na nambabae at sa kasalukuyan cia ay nakikisama sa babae nia ano legally action ang pd q gawin sa kanila
Salamat
I have something to consult. My mother is having an affair with another man, what cases can I file to them? Can I file the case on behalf of my dad?
Attny.Fred,can I sue my live in partners girlfriend? dati pa po kc SBI ng girl na titigil na sya sa pangugulit sa partner ko,pero 1 and a half yrs.na nangugulit pa dn pla xa sa partner ko.nbsa ko po tru messenger, ng partner ko,2po pla ang fb accnt.ng partner ko,mag 12yrs.na po kmi,may 1daughter,nsa custody ng parents ko po,nsa bicol.dun na po lumaki,kc po ayaw ng parents ko sa live in partner ko,dhil sa nanakit ito,nambbe pa po,at ang excuse ay,di nmn DW po nagki2ta,sa messenger LNG DW po.bukod po sa girl na plageng nangugulit sknya,mdami pa po xa ka palitan ng chat dun sa is a nya PNG messenger,. Please help me po attny.Fred,naguguluhan na po ako,dati nya pa pong cnabi na di n nya ggmitin ung isa nyang fb,pero lately lng,na found out ko na active pa pla ung isang fb accnt.cnu po ba dpat ang PD ko I sue,ung mga Babae nya po,na Panay chat pa dn,at nagrereply sknya,.o sya mismo?though we’re not legally married, can I still file a case against them.tnx for your kind response, attny.fred
Dear Atty:
I hope i can get an immediate response about my concern. I am legally married with my wife for almost 8years. My wife went to Japan to study and eventually work there. However after 5 months i found out that she was cheating on me. I found that out through her FB account sending nude pictures to each other. I decided to be separated with her because of what she did.
We have 2 kids that stays on my in laws because they are studying school nearby. my kids are now 10 and 7. I am working in Manila and every sat.sunday im taking the kids with me to my house. What happen was, my wife went back to the PHilippines saying that she is just visiting to see my kids. However i didnt know that she is secretly fixing all the papers for kids with the help of her sister. What happened next, they already in Japan without my knowledge. I thought that she is just here in the Philippines.
I also knew that they are living in Japan and alleged married to a Japanese citizen and had a baby.
My question is, how’s that possible to take my kids to Japan from here in the Philippines if she is not married with the Japanese.? What case i can file for to her that is already resided in Japan with her own family and may kids? is there any way that i can let her deported to the philippines with my kids? or can i also file a kidnapping since she took my kids without any consent on my end? and can i also file a case against those accesories who helped her to take my kids away from me.? I would greatly appreciate your response atty.
thank you so much
Helo sir good pm po..ang aking aswa ngayun ah nahaharap sa kasong adultery ta conbinage..cla nga kabit nya nagfile po ng kaso ay yung aswa ng babae paano po gagawen namin nagyun para mapawalang bisa uung sinampang kaso sa aswa ko.salamat po
hi Atty. what evidences the court will accept if i file case ?