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
bale ung panganay ni ate ngayun ay nasa high school na. at ung dlawa ay nasa elemntary na nasa grade six at grade for na sila.. so ibig sabihin matagl na pala na ksala na sila ni ate,, n msimong kapatid diko alam kasi diko naman nakita na nagpakasal sila ng bayaw ko. nalamna ko lang nung nag attend ako ng fasmily get togther ng pamangkin ko sa school last year…
Atty. Fred,
I need your advice, my wife had an affair with my brother for 6 years and had 2 children, all the while thinking they are mine, but they both confessed of their relationship and confessed that the 2 children are theirs.
What can I do? can this be grounds for annulment? please help…
God Bless.
My husband works as a seafarer and he has a mistress who also works as a food attendant in the ship. She is of different race, an indonesian that is. I have learned of their affair through a social networking site as the girl is explicitly flaunting their pictures like a trophy of sorts. I want to file a complaint against the girl. I just don’t know where the proper venue is and what documents should i present. Please help me. Thanks
Hi Atty,
I have a question,. I have a older sister who is so depressed right now and cant think of right thing to do. Her husband has been cheating on her while working abroad in Korea. actually hes been there for almost 8yr now i think because their daughter is already 7yrs old and he left when she was a baby. He only visit once in a while.
My concern is her husband now is demanding for his freedom legally, because he is chosen to be with her mistress. I think they are illegal workers in Korea right now, the woman already been deported as what i heard.
I advice her to hire an attorney about this case. What can u advice me to tell her what case we can file on him. I want to help my sister.
One more thing I know there one illegal thing he did, he is using a different name on his passport. what case we can file on that too.?
Sincerely,
Amore
Atty Fred,
I found out that my husband is having an affair with his ex-mistress from his first wife. One time while my husband is out, I print some of their emails to each other and confronted him. I told him to stop their communications and relationship. He said, “No, now that I found her again. Hayaan mo na lang ako sa aking ginagawa para sa mga nalalabi ko pang panahon dito sa mundo tutal wala naman kaming ginagawang masama and the good thing is malayo siya.” Their meeting was confirmed when I secretly read the email of the woman confirming her flight details. The woman came and stayed in our house while I was on vacation for 2 months in the Philippines. Sad part here, my husband is sending her expensive gifts like jewelries, laptop, flowers, etc. My husband admits na ginagastusan niya ang mistress niya.
He even said straight to my face that I should shut up my mouth or else he will leave me.
We are currently living in Tucson, AZ and the woman is in Georgia.
I also read the email of the woman that she is wearing an eternity ring as a symbol that she is already committed to my husband.
What case should I file against the woman? Adultery, Bigamy or both? Can I get back all the things that my husband gave her in terms of monetary settlement?
you stated that “The criminal charge cannot prosper if the offended spouse has consented to the offense or pardoned the offenders…There is implied pardon when the offended party continued to live with his spouse even after the commission of the offense. ” does that mean that if a husband takes in his wife again after finding out he is condoning offense? if he cohabited with her and had sex as if nothing went wrong does that mean that he is condoning the offense? is there a prescriptive period for filing an adultery case?
Hi,
I am a British man residing in the Philippines. My Filipina girlfriend, who is living with me, is married but has been separated from her husband for two years now. Her husband recently found out she is living with another guy and is threatening to file an adultery charge against her. Could she go to prison if convicted, and could I also be prosecuted?
Actually, my girlfriend has a marriage contract but claims it was never registered so she thinks she may not be married after all. If the marriage was not actually registered, maybe she could be legally single after all?
Some advice here would be much appreciated.
Thank you in advance.
Hi atty,
I’m having an affair with a married man. Before I met him her wife and him are already not in good terms. They have 2 children a boy and a girl. They always fight on financial problems and my bf is just thinking of their children that’s why he still try to stay in the marriage. But 1 day the wife found out that his having an affair and he uses it against him. The wife wants us to end our relationship or else she will make an action for us to stop. What charges can she file against us if she cannot show any proof that were still together?
Hope to hear your reply.
Thank you
Hi Atty Fred,
I am legally married to my husband and we have two children, 7 yr old and 6 months old…. Please give me an advice on what to do with my husband as well as his mistress. They work on the same company. I discover that they have an affair last December because my Mother caught them walking in the street holding hands. My husband told me that they already stop their affair last January but yesterday I saw pictures of them together, the girl is hugging my husband. Please let me know if that is enough to use as evidence if ever I file a case for concubinage? Do I have the rights to report them in the company they are working and should they be dismissed if the company found out that they are guilty? What if the girl is pregnant? What is the best thing should I do for them to be punished by law? I am so depressed please help me out of this. Thank you!
Good Day to all.
I got married (civil) to a British national in NOV 2006 in angeles pampanga, and after only 3 months he left after we had argument about his real person and never saw him again. He have threatened me through chat and email, financially and emotionally crippled me. When i heard from him late DEC 2007 only to receive email with copy of his marriage certificate to another woman in UK. And when i ask him why did he not get divorce first his reply was he never registered our marriage in UK so no reason for him to file divorce and he does not plan to come back and pay for annulment he wanted me to suffer and not be able to re-marry or have a life. I was told that if he gets divorce in UK it will be honored here. So one time i was able to scare him of bigamy and get him to talk to divorce lawyer in UK but after they sent me draft of proposed divorce and after i sent them documents they ask for i got message from his solicitors saying that my ex or husband did not go back and not pushed through with the case. He knew i do not have the capability to file case because i don’t have enough money, so he just played and fooled me to believing that he was going to take care of it. What kind of law or country do we have if it can not even protect the rights of it’s citizens. I am financially broke, i have one daughter from previous relationship who is in college and can not afford to file annulment or even bigamy since i do not know how he can be persecuted, it has been almost 5 years am suffering from abandonment and not being able to move on and have new life due to our Philippine laws. And because i had been in the news long time ago, i am so ashamed to even file a case afraid of what people might say. I am BEGGING Law makers please don’t stop pushing divorce law, and if anyone can help me. I need advice. Is there a way for me to file bigamy and annulment without having to pay big money? Can a PAO help me? I hope that our bishops and priest consider and think of cases like mine before they say NO to divorce. I’ am a catholic, but sometimes I even think of becoming a Muslim just so i can get divorce and have fair chance in life like foreigners do. May God Bless Us All…. Thank you very much..