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
hello good day..ask ko lang po kung pwede q po vah ipa brgy. ang babae ng Asawa q. Hindi q po sila Nakita in actual na magkasama. pero may nababasa po akong sweet conversation nilang dalawa. gusto q po harap harapan na makausap ang babe in legal ways.
Hi Atty..
This happened on 2016.. So my girl “friend” lives with his live-in partner togther with her 2 kids and their daughter… His live-in partner found out that she was flirting with another guy ((workmate)) and had a one night with him.. His live-in partner forced her to stop working and stay on their house.. and by then, he started to physically, mentally, and verbally abused my friend. By 2017, my friend decided to go home to their province with her two kids,, so their daughter was left to the father.. By then, the livein partner stop supporting them financially.. and now the girl wants the custody of their daughter. (By the way she is just 3 years old.) but the live in partner refuses to give her the child.. Now she needls legal advices regarding the custody of their daughter,, and if the live in partner has the right to sue her for what she did on the past.. Thank you ATTY.
I caught my husband having an sexual relationship online with a woman from zarraga iloilo lets name her Miss A. My husband is canadian and i am a filipino. We live in the philippines. Will i have the grounds to sue them? He has been sending money to this woman i have all the recordsand all their dirty/sexual conversations though they never met physically. Its causing me so much trouble..not a ble to sleep nor eat and now im getting angry all tge time. There are moments that i even want to give up on leaving. Now i am just thinking of going legal to make me ceel better and as well as save myself from all these embarassment that they caused me. Thanks
Honorable sir,
Can i file a case for discovering my husband and a woman texuing each other ilove yous?
What can i do?
Hi, May I ask, my father who is married to my mother twice – church in the Philippines and in Brunei, he is having an affair for almost 13 years now and had 4 children with his other woman and living under the same roof. Before they live under the same roof, my father used to live with us. He is accusing my mother – with no proof – that she is having an affair with another man. My mother has done nothing wrong.
My father’s other woman and her family has been insulting me and calling me something i am not, and it is really below the belt like I am a worn out girl (prostitute like) looking like I had given birth to 12 children. I admit that I am fat for my age of 21 but is it acceptable?
What case can I file? Or What can I do for them both?
Thank you 🙂
hi!
my husband impregnated another woman, while i am having an affair as well.
can i file a case against my husband and get the custody of our son?
my wife has a boyfriend right now, we are anly seperated for 2 months because I’m fixing my life before going back to her. I don’t have evidence that she has another lover but she admitted that to me and I knew it all along. what can I do about it?
Hi, Atty. may i ask if a woman can still file for concubinage if the paramour and the husband are over with the relationship?
Been single mom for 7 years and now i have found a boyfriend were in 4 months now he is abroad but we met recently.. now he is back on abroad again
But lately i found out that the name he given me is not his real name and he is even married with kids
What will happen to me…. it never past my mind to be a mistress specilly im a single mother…
I ended it ….
My question is the wife can file a case against me even i did not know that my ex is already married
Please give me advice
Many thanks
Hi, my mom is separated with my biological father for 10 years already. They are not annulled. Then my mom married a muslim for almost 8 years. They have a marriage contract and now the guy is having an affair with another woman. We have all the copies of their conversations and picture together. (muslims can have many wife right as long as they can afford to sustain their needs but my moms husband is not capable for it financially even his family does not agree with him having another woman) n our case, what can we file to my mom’s husband and the other woman?