A brief discussion on Infidelity, Concubinage, Adultery and Bigamy

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.

What are the differences between adultery and 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.

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

245 thoughts on “A brief discussion on Infidelity, Concubinage, Adultery and Bigamy

  1. Brad

    My wife is having an affair with another man. We have 3 kids, she’s no longer living with us. I have photos of them together, can I file a case in court?

    Reply
  2. Erika

    Hi! My husband cheated on me with his officemate.he admitted it and i have a proof in his emails of their affair.can i use that in filing a case against them?what specific case will i file?can i also file a complain in their office?

    Reply
  3. ajhay

    My wife has having affairs with man working in abroad,but my evedence is only is few text messages on Facebook account with her boyfriend,how can I file a case with her and her boyfriend…….

    Reply
  4. Richard

    Hi there Atty! My ex-wife and I agreed for the financial support of my daughter who is under her custody. The moment that we’ve talked about that, her untie and both my parents were present. I am presently living with at my parents house. The fact is that I have a special friend who lives from another province and we see each other from time to time. Sometimes on a weekend. My ex-wife got a hold of my ‘Special Friend’s mobile number and started to text her mother that she (ex-wife) will accused her of concubinage. Is this possible? knowing that the factors for concubinage is not present here in my present situation? Kindly respond to my situation so that I know what I should have to do. Thank you

    Reply
  5. Shirley

    Dear Atty Fred,
    Proffessor po ang husband ko sa isang college University sa Pampanga.
    Dito po kmi nakatira sa Pangasinan,samantalang ung husband ko po ay may apt.sa Pampanga.
    May karelasyon po siya na student niya,inamin na po skin ng husband ko at ganun din po ung girl.
    Nagkikita po at lumalabas sila ng student niya,may times din po na hindi uuwi ang asawa ko sa Apt.niya at kasama niya ung student na un.
    Do i need to file concubinage sa husband ko po?
    Pls.Help me po atty.

    Thanks

    Reply
  6. Roberto

    What is the grace period from the date of discovery of the wife’s infidelity until you lose the power to file adultery against her?

    Reply
    1. Mary grace

      Nagchat kc skin ung babae nya at inamin na my relasyon cla ng asawa ko. S ngaun dun s bahay nila umuuwi ang asawa ko,kya dko alam kng nagkakasama cla ng kabit. Anong kaso pde ko isampa? Kc dko nman alam kng san mkikita ung kabit nya.tnx

      Reply
  7. Jardy

    If a filipino was divorced by foreigner in the US, then the foreigner remarry a filipino in the Us, the divorced filipino became a dual citizen of US and Philippines, there is no record of Annotated Foreign Divorce Decree filed by the foreigner in Philippines, can the dual citizen filipino charge adultery or bigamy in Philippines? Does the dual citizen filipino have rights to ex-husband’s assets if the assets were acquired after divorced and in ex-husband’s name and his new filipino spouse?

    Reply
  8. Cal

    Dear Atty.

    I would like to know if i can file a case against my husband for declaring and producing a fake annulment. Its fake because i was never summoned to any family court nor receive any notice from the court. I just found out about it when we argued one time because i was comolaining about his lack of time wih our kids and asking him about the this girl he’s seeing, he got angry and told me that i no longer have the right to question him or act in such way because were annulled already and even asked me to try and get a CENOMAR to prove it. How is that possible? I was not given the right to file a petition and me and my children were deprived of our conjugal properties and financial rights. I really want to file a case against him. This happened almost 2 years ago. I’ve been patient and civil but the situation is getting worst and he hardly see our children or attend school affairs. What should i do? I hope you find time to read and response. Please! Thank you very much!

    Reply
  9. legal wife

    Dear Atty.
    I have a question, my husband had an affair and the other women got pregnant. This is the second time he did this to me. Even though he choose me, still no guarantee that he will not do this again. I am not confident with myself anymore. what legal action I can make to my husband and the other woman.?
    the other woman also asking for support and her family is threatening my husband.
    i really need your advice.
    thank you…

    Reply
  10. vernadette

    ..hi atty..
    may karapatan po ba akong sampahan ng kasong aldutery ang ama ko…buntis po kasi ang aking ina at ikinakabahala ko po na baka maistrees…malaki po ang aming ibedinsya na may kalaguyo po ang aking ama..madalas po pumunta ang kabet sa aming bahay…anu din po ba pwedeng ikaso???

    Reply
  11. Single.dad

    My wife and i have been estranged for almost 9 years now after she repeatedly stole stuff from me – my class ring and other jewelries i acquired since i was single and pawned them. She even sold our wedding rings! She also forged my signature (this happened 3x) to obtain large amounts of loans. I was the one holding our household finances after she “lost the money” or have the money “stolen” from her several times. I gave her monthly personal allowance (equivalent to her salary as a teacher which she was b4 giving birth to our son) so she could buy the things she wanted. I also opened an educational supply store for her when she refused to go back to work and suggested that she rather have such store, the income of which is hers alone. But it seemed that the income from the store and her allowance weren’t enough for she again forged my signature to obtain a loan amounting to 300k. When asked where all the money went, she refused to tell me. The store’s supplier also started to hound me for they werent paid by my wife at all. So i finally returned her back to her parents’ house and told her she could only come back to us (we have two children, who are left with me) if she confessed where all those money went. That was almost 9 years ago. She repeatedly attempted to come back but she refused to tell me about the money everytime and just asked me to forget about it and start over. Can i use these instances of “cheating”on me as bases? Also, do i have the right to sue her for forgery?

    Reply
  12. LovesUnconditional

    Hi . I am from Philippines and I really wanted to know if there is a possibility for a man be separated to his wife legally. I am referring to my boyfriend . We’ve been together for 5 months, sexual intercourse is normal but I am or should I say that we are aware that we are already committed with a crime . I already planned to leave him but I think he is already obsessed . He even told me that he will commit suicide if I left him. We love each other though . But what if he’s wife found out about our relationship? I am in a big trouble . He even wanted us to stay together in an apartment which seems to add another crime . He told me that he realized that after his marriage, he is no more happy on their relationship. To tell you, I am not only the one who used to have him. He also had another woman after his marriage. The only question or thing that bothers me is that, how will it be legal for a man be separated to his wife without undergoing annulment? Thanks . Hope someone with the same situation answer me. :3

    Reply

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