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
Hi atty!
I hope that you reply on my inquiry. My aunts’ partner was married to a woman since 1972, they got separated since 2003 and have 8 children which leave them 2 minors as of this time. May aunt and his partner has 5 kids, the wife of my aunts partner is aware that her husband has already a new partner and did not file any case as a mutual agreement the man is continuing to support his minor kids on the legal partner, just want to know if the man and my aunt can still be sued after all of the years that passed? Thank you so much and I’ll wait for your reply! 🙂
I am married and have 2 kids. My husband doesnt work now and he makes trouble a lot when he gets drunk. 3 yrs ago, i filed case against him when he tried to hurt me. I just withdraw the case because our kids were too young that time. We have on and off relationship, more fightings, and conflicts which makes me feel that i dont love him anymore. I told him what i really feel and he agreed to be separated with conditions.
Now, i have relationship with my childhood frnd and we wanted to live together.
My boyfriend is also married. But before we meet again and have serious relationship, he is already separated (not legal) to his wife. Prior to.the separation, he caught his wife living with the other man. He file case againts his wife but they ended to have signed legal written conditions on thier separation.
My question is, is this a valid reason to file an annulment? If both parties agreed to have an annulment and both parties have mistakes.
My husband for not working and supportinf us financially, for hurting us and being alcoholic.
Me, for commiting adultery by having relationship now with another man
Boyfriend, for being separated already even if its not legal separation and by having relationship to.me
Bf ex wife, for commiting adultery also.
Pls help.
We have been separated by my husbad for 4 years already but we didnt file annulment. I just found out that he had a mistress already living with him and they have two kids. what can i do in this situation?
Hello atty!
The wife is currently under litigation of adultery, she has 2 children now and were consented by her paramour in the birthcertificates of the 2 kids. Now if found guilty of the crime adultery can she still file a concubinage case to her legal husband, if her husband just recently has a girlfriend?
My friend an her husband separated las t 2 years because his husband had another girl and they have child already. Then my friend. Also met a guy and they have 1 child as well but they are separated ..my friend is not concerned bout their marriage . her concerns is that her husband doesn’t give enough support for their 2 children
Good morning po Attorney… just want to seek for your advice. OFW po ako dto Qatar for almost 10yrs. 2012 po kmi kinasal ng asawa ko at nadala ko sya dto in 2013. But 2014 ay nagresigned din po sya at nagtayo na lang ng business nmin sa pinas. Nabuntis po ako noon habang nandto sya sa Qatar at nanganak nung January 2015. At nitong May 2018 lang po ay nalaman ko na may naanakan pla sya sa pinas (yung kinuha nyang mag-aalaga ng anak namin kht na hindi ako pumayag na un ang mag-alaga ay pinagpilitan nya pa rin). Sa tyancha ko po ay mukhang 6mos pa lang ung bata. May mga pruweba po ako ng kataksilang ginawa nya..at pati na rin ung pagkakaroon nya ng relasyon sa ibang babae at paggalaw nya sa kanila.
Maraming salamat po in advance sa tulong at advice nyo.
Hi Attorney,
My girlfriend for 6 years has been having an affair with her coworker who has a wife and a child… Is their a case I can file for this?
Hi. I’m in UAE, and my husband is in Malaysia, he’s having an affair with other Filipina and now they a child. We are legally married and have 3 kids. What case should i file? And i want to ask for child support from him coz he’s only sending 10k Php for our 3 Kids, not enough to support them. Looking forward for your pieces of advice. Thanks!
My brother is in other country working as an OFW…he is happily and legally married to his wife…then a year after working in abroad her wife leave the kids to my parents and started working in some other place far from our place…soon we found out that his wife is pregnant and soon to have a baby…we don’t know who the father is coz my brother hasn’t been back from abroad within the period of her pregnancy…May I ask what case or legal advise can we apply for my brother to get the custody of their kids..thank you.
sir., ask lang po sana ., kung ka live in mo lang ang partner mo at nahuli mo syang niloloko at may third party., khit hnd po kmi kasal pwede ko po ba syang kasuhan., may kaukulan po bang batas para don.,
maraming slamat po.