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
Makukulong po ba agad ang lalaki pag kinasuhan ng Concubinage or makukulong lang sya when proven guilty?
Thanks
My mom is already dead, can I still sue his husband? He was in a relationship with other woman when my mom was still alive. He has a daughter with that other woman.
Im married and currently working abroad
My husband knows i cheat assimce then our marriage doesnt work anymore and i hav boyfriend here and also he had evidence of me cheating on him.
Now he plans to file a case against me and hav me deported.
I cant do anything agaisnt it and and i can be really deported?
Gud pm po I need po ng advise kung anu po ang pwedeng solusyon sa problem ko 6 years na po kming hiwala ng asawa ko but were legally maried .1day I found out na nambabae sya at nabuntis nya yung girl so nkipaghwalay ako sa kanya DAT tym hndi lang po sa dhilan na yun kundi dhil ndin po physically and financially incapasity po sya similar sapol na nagsasama kmi lagi syang nag iinom hang alcohol drinks,hndi nauwi ng tatlong araw even na alam nyang buntis ako sa panganay nmin ask ko lang po sana kung may bisa pa po ba yung kasal nmin or pwede po bng mkasala ako sa live in partner ko ngayun even though hndi pa annul ang kasal nmin..thanks in advance for the advise
Maribel, by way of general information, a subsisting marriage can only be declared void or annulled by a court. Until that happens, any subsequent marriage is void under Philippine law. Good luck.
What are those rights of being accused as mistress and no proven proof of evidence that she is a mistress because she was working on the family of the man and just accused that other woman as the mistress of her husband.. what should be the right of the accused person on that situation ..
mommmz, any accused has the same rights under the Constitution, laws and rules of procedure. For instance, all accused enjoy the presumption of innocence until proven guilty beyond reasonable doubt.
Hi!
I crossed this discussion and it did qualify my curiosity. I have this known and strange scenario and is now questioning me. However, I would like to ask to what if’s in this situation. This is between Adultery and Bigamy. The mom of the said family acquire adultery in the first hand of marriage (no case yet) this is between multiple men brought at home that even live and known by the husbands family, neighbors and friends. And this does not stop her of commiting 4 mens sexual and intimate relationship that cause the husband move to a different country to pursue his dreams for the family given that he already known the situation. However, as part of the plab the wife (who commited adultery) will also join her husband, however, failed to due to multiple relationship she has. Now for a long years to said incident the husband long for fidelity and love marries a another woman on a different country said to be Bigamy. This acquires illegal marital status that they acquire to NSO and now has 2 kids. Now the question is will the wife be sue for adultery and the husband will have Bigamy (yes) and how the wife’s adultery affect the case they filed for Bigamy ( now) . WIll there be a chance the Bigamy will be lessen due to wife adultery and will there be a chance it will be dissolve? (Bigamy). Thanks
Hi Atty.,
I’m a permanent residence here in u.s. together with my 2 kids,me and my husband been together for 17 yrs but just got married last 2017 civil and 2018 at church,and he is still in the philippines. i just find out when i accidentally open my husband messenger that his courting my friend which happens to be my bridesmaid too,they have a picture on my husband birthday and on that picture the girl is sitting on his lap and another picture of them while my husband arms is across the girl shoulder and their face is too close that my husband seems kissing her on the cheek…they dont want to admit it…is their a case i can file for them or is it a valid proof for me to file a case against them? Please i need your advice.
paano po ba masasabi na concubinage ang kaso if hndi namn nkatira ang lalakeng may asawa sa bahay ng kabit nya? kung natutulog lang once or twice a week is that considered concubinage?
Atty. ask ko lng, may friend ako na kasal po xa, nong nasa abroad po yong friend.ko yong girl po ang friend ko, nabuntis po xa sa iba, kc nadepress xa sa husband niya kaya nagawa niyang mga bagay na di dapat ngpakalasing daw xa that time at my ngyari sa kanila ng guy, pero wla.clang relasyon, pero itong friend ko ay my nlaman na nkasal lng cla ng husband kc yong husband niya ngpagawa ng affidavit na nglive in daw cla ng ilang taon para lng makasal.cla at di rin cla ngsama after nila.ngpakasal, anong grounds po ng friend ko, at pwede po ba niyang ivoid yong marriage nila, 8years npo clang kasal. salamat sa sagot.
Sir,
Ilan years po expiration ng ADULTERY?
Thank you.