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]
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Can a person be liable of concubinage and bigamy at the same time?
Hi Ann. That is a very interesting question. It deserves a separate post.
My husband left me 5 months ago for another lady , i was heart broken but a friend said i shpuld contact this love spell caster Jacob as i did he helped me cast a love spell that brough back my husband back to me , thank you Jacob.
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My husband and I are australian citizen but we got married in the Philippines. He went for a trip in the Philippines last december 2019. A few months later I found out that he impregnated a woman. What case can I file in this matter?
Hi Ijjieh. Perhaps you should first check on the applicable Australian laws. Good luck.
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my husband had new family they live in with one child what i supposed to do i have a papersthat we are married and he not sustained my daughter needs
My opinión re adultery provisions based on my personal experience is purely theoretical and neatly printed in black & white, yet not stricly enforced and implemented. One may hire the best lawyer in the Philippines, in fact we have thousands of them with fresh minds and strong spirits but what really matters is the amount of bribe a petitioner or respondent can shell out before the court and it`s staff. I made it a point from the very beginning that I still believe in the Philippine judicial system and swore that I would never tolerate bribery.
I have already noticed irregularities in the administrative procedures starting from the fiscal’s office. A warrant of arrest came first before the fiscal resolution was delivered to my home address. My case was directly moved to the Metropolitan Trial Court. I questioned the court’s clerk about it, the only answer I got was a complete silence.
My lawyer had to act inmediately, he processed the bail while making arrangements with an old woman (around 60 yrs. Old), who acted as our negotiator with the RTC office. I even questioned my lawyer why do I have to pay 14K to a person whom I do not know and a non existing service. Ashamed of the fact just told me: it`s how it works in the Philippines. Eventually, we were asked to get inside the judge’s office, I’d rather called it as “palengke”. The staff were entertained with the TV show “wow wowee”, the rest were eating their lunch or snacks, one fat guy was loudly snoring while taking a nap. I was totally escandalized with what I have witnessed.
It was a lengthy trial, even to the extent of elevating the case to the Court of Appeals. We underwent mediation process and pre-trial stage. We agreed to withdraw the case against each other. Mine with him was Violation of women’s and children’s rights. Eventually, adultery case was dissolved after 2 years. I must admit that my ex is a psychologically imbalanced person. Uncontented with the decisión, he revived the case three months later such that we were prompted to elevate it at the Regional Trial Court citing it as a “double jeopardy”. Again, my appeal was dropped and learned from a reliable source that my ex must have paid around 500K. Again we filed a certiorari at the Court of Appeals in 2017 while RTC case was on-going and until at the present date no resolution from the Court of Appeal has transpired yet. Last year in 2019, we finally settled the case by paying off a discounted fee of 300K.
I hope my experience will serve as a reflection for those who are seeking justice because seeking for it is extremely costly. I would strongly advise everyone then to be prepared with the mental, social and financial stress that comes with it. I am just lucky that I am holding a foreign Passport such that I had the chance to flee from the country. It was the most difficult decisión I had to make: leave home, work, friends & my family.
Last year, I went back to the Philippines to file Reinforcement of Visitation Rights on Minor Child. Lately, the Regional Trial Court unfairly dismissed my case due to failure of the parties to compromise. I can’t define any kind words to the femle judge now except being TERRIBLE, UNFAIR, UNRELIABLE and INHUMANE. I have no plans of pushing further my case to the Court of Appeals as I find it useless, waste of money, effort and time.
“Infidelity, Concubinage, Adultery and Bigamy” Can all this add up to be a setup for my brother and leading to attempted murder” If my father second family put us down all our life .! Looking for legal advice ?
Dear Atty.,
Scenario: In 2014 the husband started to have an affair with another woman who is also married. After 2 years (2016) his wife had undergone a surgery and while on recovery state the husband left her to be with the the other woman. In 2018, the wife left their house due to much pain and to cope up with stress and depression. In 2020, the husband brought the other woman into their house with the knowledge of his parents and lived together, then, he lived filed for annulment.
The question is, can the wife file a charge as concubinage for her husband though the husband just started to file and annulment? Or is there anything can be file for charges though he filed annulment?
Looking forward for you response. Thanks