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.,
what case can i file to my common law husband and his new lover. she is a work mate of my common law husband. they both terminated from their work after the issue of them. we are still living togerther but the third party is can’t stop to communicate to my common law husband. and lately she communicate to me to argument to let her go to relationship to my common law husband.
What if my ex wife and I have been separated for more than 10years. No legal separation has been filed yet nor annulment. And I have a live in partner now with two kids. Can i and my partner be accused of concubinage?
good day po.
my husband, an OFW in dubai, recently kicked me out of our home, took the kids to his mom and sped back to dubai. his reason for kicking me out is that I am too “magastos” and he said he is fed up of me. though I learned when he left that he has gotten married to another woman (a filipina) in dubai.
questions: can he really get married in dubai while still married to me here in the philippines?
what actions do I take?
thank you and I hope you’ll answer my queries.
dear attorney,
my husband is a ofwi dubai. he’s been working there since 2010. he suddenly came home last july and stayed for a few days only. he seemed antsy and avoids being alone with me. the day he went back to dubai he said he wants to separate from me. he even locked me out of our home and took our 2 boys to his mom. i tried talking to him and he said we’ll talk when he comes back in april nxt year. now i cant contact him. he doesnt answer my calls and has blocked me from social medias.
later i found out from a friend that he is living in with another woman in dubai and is planning to get married.
my questions are: is it possible for him to get married abroad while still married to me? note that the other woman is also filipino.
can our marriage be annulled without me being aware of it?
what legal actions should i take specially regarding my sons and our conjugal home?
i hope you will answer my questions. thanks and more power.
Good day,
Atty. I just wanna ask po, pwede po ba magkaso ang isang babaeng kasal pero naunang nangaliwa at nagkaanak sa iba, at ang asawang lalaki eh may girlfriend na ngayong hiwalay na sila pero dipa annuled, pwede po ba nya kasuhan yung asawa nyang lalaki kahit nauna nangaliwa ung babae,
Thanks po!
My husband is having an affair with his co-worker they even got a child he admitted about the affair and he said already stop and part ways with their relationship. I found a call recording on my husband phone they plan to have sex again. I was very devastated when I found out. What case can I file for both of them?
dear atty.
my husband had an affair to other woman,
my husband ask for my forgivness and im not totally forgive him but we still live at our house,becouse he admit and he promise to never do that again,but the woman was so nug she want to pay the money that my husband barrow to her,we actually meet at their asocciation at their baranggay but still im feel of lost nothing to say becouse they said to be quiet but that mistress was so crazy,she insult me again and again
my questio is if i forgive my husband,can i complain for that girl?
what kind of complain can i do?
thankyou so much
Good day sir..
I would like to ask for your opinion on my case, my wife left me and my son months ago because she’s just not happy anymore. The reason of leaving our son is so that I wont do anything stupid. She has admited to me that she has fallen for some other guy.. they’ve been texting and dating but the guy left for another country and well “nanghihinayang” sya.. saying that she and our son would have a better life with him.
My question is… her admiting that shes going out and texting or entertaining the guy.. is that considered cheating and can be used as grounds for adultery? No intercourse happened as per my wife… I still keep a copy of the text message.. and also will that give me a fighting chance for sole custody of our son?
Hi, i have a partner. We are living in together for 3 yeara now. I found out that he’s having an affair with his officemate, the woman is pregnant right now. I was wondering if i can file a case against my partner and his girlfriend. Or can i have them terminated in their company? Btw, we have a 2 year old son.
ang pagblotter po ba sa baranggay na kami ay hiwalay na ng aswa ko ay valid na document para masabing pareho kami nakaka alam na kami ay hiwalay na?