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 former Filipino and now a US citizen, I didn’t know the time I left Philippines 20 years ago, that the father of my children who asked me to sign a blank paper will use my signature to make a marriage certificate.
He asked me to sign a blank paper saying that he will consult his lawyer to produce a letter stating that I cannot oblique him for our children’s maintenance.
I never love him and he just rape me, when I got pregnant I always wanted to escape from him but unfortunately my parents insist to send me back to him.
Because they will not allow me to live with them as an additional expenses to them that since I bore a child with him, I should make him take care of me and my children.
I manage to go and work abroad without realising he had produced a fake marriage certificate and I don’t know how he manage to forward it to NSO declaring I am married to him.
I just found out recently with NSO that this marriage certificate exist after applying for a CENOMAR.
The time I went abroad 20 years back then I met a US citizen and we got married, assuming I am still single in my country they never required anything from me in order to marry my US husband.
After 20 years I went home using my US passport. I was told by my own mother that I have a marriage certificate with this Filipino.
Due to curiosity I applied for a CENOMAR and it did say that I am married to this Filipino and also married to my US husband. What do I need to do?
I am now just US passport holder and US citizen alone, I am no longer Filipino citizen or dual passport holder.
What is my status? Do I need to file for an annulment even though I am not aware of this marriage existence?
BTW, this Filipino man is now in jail for drug dealing Section 5/11 Article II.
Thanks in advanced.
Hi, i have a question, last 2013 i found out that my husband is living with another woman and that the woman was pregnant, we never separate for some reason except when my job brought me to Aklan,, when i was in aklan already a rumor surprised me i talked to him every night at phone and i didnt know there was a problem like him having an affair with another woman,,, so when i found out about it i called him and right when i confronted him that the rumor says he got this woman pregnant for 5 month already,, he turned off the phone,, that very same day i was able to confirm it from his sister.. that they r living together already in manila and that the woman was not pregnant but gave birth already sept 2012… from there i chose to keep my space and waited for the right time to get back to them,,,, now i have all the pictures they posted on facebook as a family and i got an n.s.o. cert, of the chill acknowledged by him meaning the child is registered under his name..
is this enough proof for me to file for concubinage case? or is there other case with heavy penalty than concubinage?
i chose to keep my distance but after a year and a half i am ready,, so please i am badly needing ur advice…i would really appreciate it,, thanks.
Hi, rose! Do you already have answer about your query?
Dear atty.
My husband is a US citizen and he is now working in hawaii. We are married since 2006. I dont know that he is having an affair with another girl in hawaii and now they have a baby. He just confess to me. I dont know the name of the girl because he will not tell me. What case should i file against the girl and my husband and where should i file.
Thanks.
Dear atty. Fred
I have a problem and I need your help ,I married a man who is married but they are not doing couples do like intercourse even though they stay at one compound house they see each other but not as husband and wife it’s just for the sake of their two kids we decided to convert muslim and got married and the wife of my husband file a case against us concubinage and now I’m 7months pregnant do we still have to put into jail even though we are now a muslim .
Thank u very much-,,,kerizza
I have an inquiry on filing concubinage against my husband abd t othrr woman b I discovered they are cohabiting and living in my husbands mother and they have a 2 year old daughter. I am pregnant now and our eldest is 12 years old & 2nd is 4 years old.I have a copy of the birth certificate of their daughter and my husbands signature and acknowledgement of paternity is seen.please help
Atty, only last March 9,2013, I discovered my husbands cohabitation with his mistress.My eldest son confessed to me that his father is living in together with the other woman and they have a daughter.My 12 year old son told me, he was instructed not to tell me the truth.My husband and the other woman are cohabiting at my mother in laws house.Accdg to my son they call each other Ma & Pa. Now I am 5 months pregnant likes to file a case against them.please help.need badly your advice.Thanks
hope you can give me some advice
I have been married for 30 yrs with 2 grown children
my husband has made a few trips to the Philippines over the years to visit a friend who lives there – I also visited 12 mths ago by myself as due to work unable to get time of together very rarely
6mths ago he arrived back from a visit and had spend a very large amount money – Id had enough thinking he had wasted the money on alcohol and gambling as he had do many times over the years I throw him out but be catholic will not divorce. Recently I have found out he has a child to his girl fiend over there and I have verification ie dna test – this has desisted me and my family. If this child was born after the separation I think I could cope but the thought he has been unfaithful has cause me great hurt- I have not been able to work have lost the ability to trust – not even my children and feel my so called marriage was a lie
could you please answer the follow
1. can i file a case against them? what case will that be?
2. can i demand compansion?
3. will they both be put in prison ?
4. if i do file the case against them will the Australian govt send him back t the Philippines to face the charges?
5. how do a start a case and how much will it cost?
thanks in advance
hi,i need your help badly…im a filippina ,married and living in europe.I just want to ask if its possible to file a divorce here in europe for fillipino couple living in europe.yhank you ..please reply asap…..
Dear sir,
My husband and I got married last 2012 and then due to my work, I need to left him for 2yrs or more. He then decided to work abroad also and said that it is for our future.. He met a girl in the place where his job was and then fall in love with her. In short, may relasyon na po sila at inamin na din nya sa akin na mahal nya ung girl. Gusto ko po sanang mag file ng kaso against him. Kindly inform me po kung paano. Thank you!
atty fred;
hi.. im planning to file a charge to my husband for concubinage.. were living together for 9yrs.. but during our 4 yrs she have an affair with my ex-college friend and they having a daughter.. still i accept my husband coz he promised me that it was been accidentally happened.. so were continues living in the same house but knowing me their relationship still on going.. last year my husband proposing me to get married and forget everything what happened to us and start a new life just between of us.. so we got married in manila city hall (civil) last oct 2013..
last april 2014 i get pregnant but after 2 months i lost my baby because i found out that my husband and her mistress still having an affair.. so after i hospitalized i decide to left him and stay with my parents house.. lately i found out my husband is now leaving with her mistress place but i dont have enough evidence to proved it.. until now i still have communication with my husband.. we seing each other every weekends.. but i tried to convince him to tell me the truth and i will leave them for free.. bcoz for me i want to live on my own… but he always saying that he never lived with her (mistress)..
my question is what evidence do i need to have so i can file a concubinage for them.. bcoz i want to set my self free from them in a legal matter..
kindly help me please..!!! as soon as possible..