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
Hi! I am married and I have a son which is a special child ( 23yrs old) I am working abroad and my ex husband is not providing a financial support to us. He has a family now with 02 children and i do not know where they live but as far as i know he is working in Singapore as aircraft mechanic, but no one from his family give the company name where he’s working. I went to PAO in our province and they send a letter to him address to his parents house for the conference but no responds from his side. What will be the next step? I decided to file a case against them. ( husband and the woman). Can you help me please? Thank you.
Atty,
Greetings,
I’m married for 4 yrs, Got married last 2009, one week after, I gave birth to my daughter, after 5 months,I found out that one month before we got married is He’s having an affair with his co-worker,before I knew it the girl was visiting my daughter in my house giving things, after few days, I tried to check my husband’s phone and I’ve read that they’re fighting and he confessed and asked for forgiveness that they are having an affair. we even went to Makati, which his Grand Mother’s house is located , which he stays because its near his office, and to find out that the Girl is already staying and renting a room. the 3 of us talked about the situation, and my husband promised me that he’ll put up an end on what they have, he decided to stop working then I decided to work, we had a small fight that ends up with bruises in my face and body, then he left with my daughter, for 6 months that I haven’t seen my daughter because he wont let me, we talked about our problems, and I asked for his forgiveness even It’s not my fault, then his friend told me that my husband and his mistress still have a relationship, the girl is texting me to surrender my husband to her because he doesnt love me at all. so I talked to my husband and then he asked for forgiveness again, after that, he accused me that i’m having an affair with my co worker, which is not true, there is someone who liked me but i refused, my boss liked the guy and when the guy confessed to her that he liked me my boss talked to my husband and tell everything that isn’t true, 2 yrs of not seeing my daughter because of his father’s condition that if i force to see my daughter he will not let my parents visit their grand daughter. so even its hard for me I accepted. I found out last year his mistress gave birth, and they stay in one roof with my daughter, my parents regularly visits my daughter and coming out in my daughters mouth they found out about my husband’s mistress, not only that they even brainwash my daughter’s mind that if she sees me she must run away because i will hurt her, good thing about this my parents is building me up. and my daughter still knows me, last year, I met this guy which is my partner in our business he told me that he likes me and i have the same feeling. we have this relationship for a year, can I still have the custody of my daughter, would it be charged for abundanment even my husbands condition, and before he told me that he will file a case which is adultery, even when he is the first to have a mistress. and now they have a child, can i file a case for concubinage? can i also file a case of violence against women. because he’s hurting me physically. I really want to have the custody of my child legally but my husbands has the capabilities to hire someone then kill me, or even himself, and also he was deported back here in the philippines because he was in jail for 3 yrs because of the case illegal possession of drugs and firearms. can this situation helped me for having my daughter back?. please I need an answer.
Thank you for reading.
More Power!
i have known that my wife has an affair with another guy, she was missing for about a year without any communication.i look for her to find out if she’s alive or whatever, and i found out that she has a new live-in partner. i complained to the policemen of what i caught about my wife but the policemen did not honor my complaints against my wife. after a year and some months, she come out pregnant , without my knowledge she went home as if nothing happened . now, she is pointing me that its our son she is baring. now, i want to sue her because as far as i’m concerned i was not able to have sex with her after she was missing and had an affair with another guy. what would i do atty? what would be my steps to prove her guilty and if proven, what would be the penalty ?
Gud pm Atty:
My itatanung lang po ako. Ang asawa q nagtrabaho sa abroad. Kaso nag karoon xa ng iba doon nag kaanak ng twin sa isang Canidian 6years old na ngayon. Ng nalaman q naghanap na rin aq ng iba at my isang anak 3years old sa ibang babae. Hindi pa kami annaulled. Mahahabol ba nya ako atty? My dalawa kaming anak nasa ka nya. Sa ngayon my iba nanaman xa isang pinoy na nag aalaga sa twin nya bahang xa nagtatrabaho sa Hongkong. Ayaw q na sana ng gulo piro nagbabanta xang magdemanda pagdating nya sa pinas.
Sana ma advice po nyo aq. SALAMAT
hi po 1st time to post, hope you can help me.
2007 kinasal po kami ng husband ko sa civil rights on that time po 19 pa po siya but his father sign na consent..2009 po ay hiwalay na kami from the time nag hiwalay kami wala po akong nareceive any financial support from him,from that time of separation also He had an affair at nagka anak sila but sa birth certificate hindi po apelido niya ang naka lagay. at naghiwalay din cla…from the time na nagkahiwalay po kami ay wala na po kaming communication, nalalaman na lang po namin ang nagyayari sa isat-isa dahil sa mga relatives at common friends namin.
Now 2013 po ako naman po ang nagka BF at nagsasama na po kami at nalaman ito ng husband ko at sinabi niya sa friend ko na He will file case against me.ito po ang mga tanong ko
1. Can my husband file case against me?what case?
2. Can i also file case against my husband when He is the 1st one to have an affair and they have child?what case can i file?
3. Can our marriage be considred null and void cause on the time of marriage he isunderage?
4. What can i file legal separtion from my husband at what grounds can i use against him.
thank you
hi sir fred,
regards!
I have a sister married almost 10 years,her husband commits concubinage over her when she went abroad to work.After 3 months my sister left him in Pinas,my brother-in-law had a live-in-partner,got a kid then my sister found out just 6 months ago that they have a 3 months born child already,My sister now is in dubai for more than 1 year.The man is not giving any support to the kids who are staying almost 7 months in the parents of the man ,now they are with my father almost 3 months.The mistress is bothering my sister send fb mails of insult and demanding my sister to sign the annulment paper.What can my sister do?
Hi Atty.
I would like to ask if I could file a case to my father, who left us for 8 years, since 2003-2010, no support at all, because of other woman. then came back 2010, with 2 children, and ask me to take care of her children. and now, it happened again that he is having an affair in qatar, and i stopped taking care of my siblings because of lack of support. thanks, pls help me. im above 21 though
i have a wife working in europe. were maried for 9 years already. we have two children, 9 and 5 years old. she start working abroad when my second baby was 7 months old. her reason she left us here in the philippines is to help me since according to her my income as an IT/Network Engineer is not enough. she left march 2009. but i caught her in fb flirting october 2009. since then we have several arguments over the phone but with the advice of my parents i focus my attention to my two kids. year 2011 she went home to have a vacation. after two weeks i’ve noticed balisa sya and parang may tinatago. midnight tumawag yung guy sa mobile number (philippines number) nya and ako ang nakasagot. then I rertieve all the messages. doon ko lang nalaman na may relasyon sila. then bumalik sya ulit sa europe, not knowing dala nya yung birt certificate ng mga kids. then ngayon balak nya kunin yung mga bata sa akin. may i know if i have some legal actions to protect my kids. thank you very much.
hi,
good day!
i have a friend with two children, one of them is below 7 year old. She’s not married with the father and been separated for 4 years now but the father refuses to give visitation rights and custody to their child whose below 7 year old. The father is unemployed and the mother is now lived in with a lesbian. Is there any possibility that the mother can do to have the sole custody of their below 7 year old child even if she is having an affair with a lesbian?Thank you so much.
Hi Atty,
good day! i would like to confide lang po, i’m married for almost 15yrs w/ 2kids. Now i found out that my husband is having an affair with our officemate for more than a yr already. He said that they dont have relationship but i know they still have so i research on my own & found out that i’m correct. what should i do? can i inform our office about their affair? what could be the grounds & offense? and also i found out that they are planning to leave the country so that they can live together. hope you can help me i’m really bothered thank you so much