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
we’ve been seperated for 10 yrs and both are living with someone. I just want to file an annulment for legaly seperation with him. But he kept on asking for a Big amount of money so he would sign. Gusto ko magfile ng annulment kc feeling ko ginagamit nya ang kasal namin para perahan nya ako. Eh hindi naman po ako mayaman. pinagiipunan ko nga lang po ang pinambabayad ko sa atty. at parcial pa.
dear Attorney,
my common-law husband and i are happily leaving together for 8yrs we have one daughter acknowledge by my partner.my problem is we want to get marry but he still married to her 1st wife. actually my partner already talked to her wife regarding for this annulment.but the wife said if we want her to set us free she asking for a huge amount of money, which is talagang hindi naman po namin talagang kaya. so my partner decided to convert to islam since half of his relatives is islam.so now he is converted now in islam. my question is if we get marry in islam is it still bigamy?
sir you have mentioned that in concubinage prosecution must proved that
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.
What do you mean by scandalous circumstances? Can you give example of this from previous cases?
im married for for 20 years, but we seperated after two years, she had an affair and i had an affair, but recently she filed a case about me, cocubinage, what action do i need to do for i work abroad, anyone please….
ive been married for 20 years, 2 years together and 18 years separated, recently she filed a case to me, concubinage, i was confused because she had an affair before but i did not do anything, i didnt even file any case for them coz i thought its ok, but now im facin this charge, i work abroad will you please help me, thank you so much….
My cousin and her husband were married for 22 years already, because of hardship they agreed together to ler his wife look for a guy to support his family financially. 3 years ago his wife found her a guy a foreigner with the consent of her husband, then the wife has to meet the guy here in the philippines although she didnt love the guy and which is against her conscience, so 2 yrs ago she decided to leave the guy thinking that her husband is just using her. So, when her husband knew that he is no longer with the guy he got upset and blame his wife for making such decision that she supposed kept him for fiancial security now her husband left her with another woman and they are living in together. My question is can my cousin file a cuncybinage case agaisnt her husband and the girl or can her husband use the situation she got before with her foreigner guy and now they are no longer with each other.
Thanks
amrlyn
SIR’ Pwede na ba ibedinsha ang piuktures na mag kasama sila at loving, piro wala naman sex’ for bigamy?
Atty,
I’m a married woman and i had an affair with a married man. I got pregnant. Both my lover and husband know about it. My husband is forgiving me. Will my baby baby be illegitimate? What are the rights of the my lover/biological father when my baby is born? What does the law in the Philippines say?
my wife went to the U.S. secured a divorce and got married. What is my remedy? It could have been bigamy. But since it was done outside Philippine territorial jurisdiction, I am left with an empty bag. What should I do?
may boyfriend po ako.leaglly married po sya nagkahiwalay sila. tapos may ka live-in sya at may anak sila. sa original wala po syang anak. tapos kami nagkaroon din kami ng relasyon hanggang ngayon. tanong ko lang po, may karapatan po ba ang ka live-in nya na saktan ako at murahin? sinugod po ako ng ka live-in sa opisina na pinagtatrabahuan ko. kinausap niya po ang isang chief ng division na kinabibilangan ko. pero wala naman po syang napala. may karapatan po ba syang saktan ako at murahin? nag work po yan ng abroad ang live-in ng guy. if in case na sugurin nya ulit ako, pwede ko ba syang pa block sa dfa? in the first place di sya asawa at kung tutuusin pareha lng kami ng katayuan. lamang nga lang nya ay may anak sila. salamat po atty.