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
my husband is cheating on me his sister also told me that he go home once a week in their ancestral house i am now 4 months pregnant and my husband doesn’t want to go to my place where recently he go home every week ends.. he did tell me the girl has a husband too, i was so sad but what can i do now. i want to file a case to scare the girl but what case will it be. i was afraid if my husband has a baby in that girl.
MY HUSBAND SAYS
hindi na nya ako mahal at pakawalan ko na sya will that be a ground for him to file a annulment?
pls let me know what to do
I was married to someone who is already married and parted ways right after knowning of his true status.
can i obliged him to have our marriage nullified since if i would, i dont have resources to pay for the counsels?
pls. advise
I am separated and living with another woman to whom I have a 2 year old son. In the course of our living together, many arguments, fights ensued which led to both physical and verbal abuse which happen more often that not. She has also verbally abused my parents and certain relatives.
I have started to document the physical abuse by taking pictures of scratches and bruises that I have experienced. My parents including some relatives would validate such.
At this point I would like to sever the relationship but am under threat that :
1. She would reveal to my legal wife that we have been living together and have a child so that my legal wife can file a concubinage or adultery case against me.
2. She would scandalously make a scene particularly in my office, and make calls to expose our immoral relationship so I can get fired from work.
I want to just leave her and bite the bullet but am worried of the above issues that would really affect my relationship with my legal wife and children. Losing my work would also mean the loss of my means to support my children.
I have thought of a restraining order but am unfamiliar with it. Would it apply or how to I proceed to end this excruciating relationship I should not have been in the first place.
i have just read that infidelity is not a SOLID ground for marriage annulment. what then are the other grounds in order to annul a marriage because i have a brother who wants to remarry. he was married to his wife in 2000 but was separated from her since 2002 because the wife’s family kept interfering with their married life. after several years of separation the wife had a relationship with another man and had a child with him. now, my brother wants to have a new life, has a girlfriend whom he wants to marry. can he file annulment for his first marriage. i will greatly appreciate it if you can enlighten me in this matter because i want to help my younger brother as he deserves to be happy too. also my brother and his wife have a daughter, can my brother get the custody of their child. i will be waiting for your reply. thank you very much.
good day, regarding concubinage, what exactly does sexual intercourse under scandalous circumstances,mean? need help. thanks. more power.
Dear Atty,
My family has been a resident of Dubai for 10 years and January this year, I decided to stay in the Philippines with my 4 kids. My husband stayed in Dubai and transferred in a sharing accommodation with fellow Filipinos. There she met a separated woman with children and now having an affair.
My friends saw them always together and strolling on malls holding hands and intimate. Gossips about them has spread in Dubai. I confronted him about his infidelity but instead he answered me that he is not neglecting his responsibility with our kids and should mind my own business.
I am the legal wife and he is my legal husband. Please advise me what to do to make him realize that I am minding my own business.
Thank you and more power.
dear sir,
the husband of my gf now is living with another woman for 5 years, can that be a ground for annulment, since we want 2 marry in the future,thank you sir.
Hi atty. I just found out that my husband is having an affair with other woman and my husband is currently working in Dubai. I want him to be send home and be deported from Dubai. What agency can help with these matter and where can I report him? I’m here at the Philippines. What can I do pls help me. Thanks
hi sir,
wold like to ask kung ano kaso pd ko ifile sa asawa ko at sa GF nya. yung husband ko po di nagbibigay ng maayos na sustento sa mga anak namin.Dahilan nya ala daw sya maayus na kita (driver po ng taxi ang husband ko) 300p po every other day binibigay nya. Nagaaral na po 2 namin anak tapos may 3years old po kaming bunso. yung GF nya ngayun nagpplan na magbuntis, nabalitaan ko po na gumagawa sya ng mga steps para mabuntis eh 2months palang po sila.hindi po kaya ng sweldo ko ang buhayin 3 bata. la din po ako pangbayad ng atty para magkaso.Wala naman na po sakin yung kung may GF sya o wala, ang sakin po magaanak pa sila? eh mga anak ko nga di nya masustentuhan ng maayus. kahit po ba wala syang payslip pd ako magdemand ng sustento? pag sinasabi ko po na ededemanda ko sya, sinasagot nya ako ng “ipakulong ko nalang daw sya” wala daw syang magagawa yun lang mabibigay nya. Pd ko din po ba ireklamo yung babae sa trabaho nya dahil sa pakikiapid nya sa asawa ko? kasi po parang kami pa ng mga anak ko kelangang makiusap para makasama ng mga anak ko tatay nila. 1x a week nalang nila makita 1-2hrs pa. I hope you can give me advice.
Thanks
Sir, paano po kung almost 10 yrs na kaming hiwalay at nagkaanak nako sa iba? Hindi naman sya naghahabol pero twice nako ngfile ng annulment even wala pakong ibang kinasama at anak, hinihingian lang nya ako lagi ng pera everytime I try to file the annulment. Meron na din po syang kinakasamang iba at nakatira pa sa bahay nila. Ano po bang dapat kong gawin? Meron po ba akong pagasa na manalo sa kaso?