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
gud pm atty.
my prob po kc aq, ung ka live in q po ngaun eh married,hwalay n cla 4yrs,pro ngaun ung asawa eh prang nghhabol at nangggulo p,ayaw nman n ng ka live in q s asawa nya kya khit anong efort nya eh d kmi nghhiwalay at d n cla mgssama p ulit…wat po kya mgging balik nun smin.pina brgy n nya kmi pero ala din ngyari,ayaw nman nya sbhin kng ano ang demands nya wen it comes to their children.ung ka live in q po kc eh hnd rin mkapag suporta dun s mga una nyang anak kc ala xa job ngaun.
hi atty fred!
good day!
i want to ask what can be charge to the “other woman”? the situation is like this, the guy has been married for 3 yrs, had 2 kids with the wife, then had an affair, and got the “other woman” pregnant. please advice.
thanks!
Good day,
I’m a girl and do have partner, where still living together for almost ten years now and do have a daughter, but recently, I found out that he is having an affair now with a married woman but the woman is not already living with his husband, while we, my partner, are still living together. What are the legal consequences of their affair? Can I still stop there relation using a lawfully action? What will I do to make the girl end her relation with my partner. Please help…
Thanks…
atty fred,
what do you consider a valid proof for adultery?
is verbal accusation a proof?
i left my husband and took our 5 kids away from him because of neglegence and abusement.
i have all the documents to prove this.
he took thw kids while im at work and learned that im having an affair with my neighbor which is not true.
he said that the kids saw me kissing the guy and having sex in front of them which is impossible as well.
please help and tell me what steps should i take yhank you in advance.
hi atty, i was married and after some years of marriage, we separated but not legal. i went abroad then after a year he went abroad also. there he met a girl and they came home in the philippines to get married. i found it out through a social network about the matter. i want to file a case against him but i dont know his whereabouts. what should i do on this matter?
dear atty.
i am a wife of an OFW who unfortunately had a brief illicit affair with no less than the husband of my husband’s younger sister. yes, i know it is really complicated. everyone in my husband’s family knows about it except for my husband and my sister-in-law. just in case this will be known to my husband, can i still have the rights for custody of our only son, who unfortunately is a special child.
pleaase help me..
My dad is legally married to my mom. Just this christmas, my mom found out that he is having an affair with another woman and has bought a house for her and that they have a 5 year old child. Last jan2011 she had a stroke and is just recovering. dec25,2011 she suffered another stroke, itwasreally scary for she doesnt know us anymore. Currently, im at the hospital because she is still confined here. My brother caught him red handed at the house where he is chabiting with the woman, he didnt face my brother instead he fled manila and went to mindoro to hide his woman. What shall we do? I am afraid he has gone nuts over that woman, what is more digusting is that he brings her to our businesses and all of our men sees it all, this thing isnt private anymore, what a shame for us. We dont want our assets to go all to waste and be given to that woman and her child because ny mother worked hard for those. My dads obligations to us are all nothing. He still hasnt shown up and i am also afraid for our lives for he is becoming insane Pls help us.
atty fred,
my husband and i are separated. he has my youngest child.when i left him, he refused to let me see our daughter. i left him, fell out of loveand just got tired of working hard and seeing him spend everything i earn, even the money that is for the kid. he is spineless and jobless. anyway, we separated 2007. finally got into good terms with him, he allowed me to see our kid. i now have a partner and he recently lived in with his girlfriend. now she is 2 months pregnant and they are residing somewhere in bulacan where i dont know where exactly. i barely see my kid and does not respond to my texts and ignores my phone calls.dec 3 was her birthday and he did not letme see her. dec 26 we met at his parents house in sta ana and our daughter no longer wishes toeven come near me, she is 5. i dont know what happened, therewerent any problem last time we went out and met last week of october.he failed to communicate with me and its only now that i saw my daughter, most probably due to his gf’s pregnancy. i want to know my rights to my child. my husband is not working, the girlfriend spends for everything and she is well off with businesses and the house they are staying at was just recently constructed. i am happy that my husband is now happy and found the one for her whom i can no longer be, but i want to know how i can get to see my daughter more often. they are the ones controlling when i can see my daughter, it hascome to a point where meand my family wants to fight for my right as a mother and get my daughter’s custody. thanks. i really need a lawyer.
carl cristine ramos juban
hello atty. fred. my husband had an affair. the girl got pregnant but gave birth to a baby girl. I earn more than him and I dont want the money I’ve worked hard for be given to the child in the event that the other party demands for support. Is there a way for me to protect what my kids should solely have? please help me.
i know this embarrased but i want to know kung ano ang dapat kung gawin..Ako po ay may kapatid..nakapg asawa ng isang OFW pero ung kapatid ko hindi xa OFW..ang tanong po ay..UNg sister ko meron xang Marriage certificate a dala dala nya ang pangalan ng asawa ,, kahit sa mga ID, bank accounts, At passport ay pangalan ng asawa nya ang ginagamit.. nagtataka po kung paano sila nagpakasal ng bayaw ko na alam naman namin lahat na kasal xa sa unag asawa at di pa sila annuled at buhay pa ang nang asawa. this past few months nalaman ko na lang na sa tulong ng aming ama nairegistred ang pangalan nila dahil sa sulsol at kakilala ng aming ama sa paglalakad ng mga papels..Ang bayaw ko ay may tatlong anak sa unang asawa at meron din xang tatlong anak sa ate ko… ano po ang mangyayari sa kanila at sa mga conjugal properties nila. sino po ang may mas karapatan. salamat po