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

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

  1. threepm

    hello po.. my wife is currently working abroad… i asked her email add and other account on social media.. as i was digging on her messages in sa kanyang inbox, i found out a conversation with her friend and i found out a picture of a foreign guy with my wife beside him with intimate body contact.. my wife showed the picture to her friend on that conversation, then my wife said that they kissed and she wanted to do sex but it did not happened. as if she was so proud to told it to her friends. i also found out on some of their conversation that my wife has a lot of chat mates and stating on their conversation that she has mga “kabit”. what case can i file against her??

    Reply
  2. Jane

    Atty. Im 22 years old my isang anak.. yung asawa ko po ay teacher. At may relasyon sila ng kanyang istudyante.. yung babaeng istudyante po ay minor de edad pa lamang po..ano po ba ang dapat kong gawin?

    Reply
  3. Elvira

    Atty i want to file against my husband for concubinage kasi nalaman kay kinakasama sya ngaun nga almost 5 yrs na jst ds yr ko lang nalaman na luve n na sila kasi nakita ko sa fb acxnt ng babae ung mga pix nila at nag surprise visit ako sa boarding house ng husband ko wala syang magamit.gusto ko sanang sampahan anh dalawa kai alam ng babae na may asawa ung husband ko.the girl is working with a pharma company gusto ko sana matangalan sya ng trabajo and besides nalaman ko na kasal ung husband ko sa ibang babae pero nauna ang kasal namin.pero ibang babae ito sa kinakasama nya.me and my kids are staying in tacloban my husband sa cebu naka assign umuuwi sya sa amin once a month and christmas and new year.just this year ko lang nalaman nakita ko nalang sa mga post ng babae since 2010 ung mga lakad and date nila.pero nalaman ng huaband ko na nakita ko sa fb kaya pine erase nya sa babae ung mga post bt i still have few pictures na save ko sa cellfon ng anak ko.ano po na maopapayo nyo.salamat po

    Reply
  4. Elvira

    My husband is living with other woman.for almost 5 years.both of tjem are working im cebu but in different companiea.nalaman ko lang this year kasi nakita ko sa post sa fb ng babae ung mga dates nila
    Nag surprise visit ako sa boarding jouse ng husband ko.dun ko nalaman na wala na syang gamit dun pero inuupahan pa rin nya ung cuarto.may mha pictures akung nakuja sa fb ng girl pero nabira ng husband ko at nabura na rin sa fb ng babae pero may na save ako sa isanh cellphone ko.gusto ko po sanang matanhalan ng trabaho yung babae at pati na rin asawa ko gusto ko mag file ng case ano po maiipayo nyo po

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  5. susie lou

    will there be a criminal or administrative case for a lesbian and a married woman with 2 children living together who are both government employees? Do they violate any civil service rules or regulations?

    Reply
  6. Gabriel282014

    Hi Good morning. I am seeking for legal advice regarding my husband who cheat and mentally abusing me. My husband and I are married for 10yrs. He was my first love and when we got married i gave him my life i always suport him in any decision he makes and always listen to him. We move to PH 2013 and start a business 2014 he was hired in manila and later i followed him untill he decided for me to go to Mindanao to expand a new branch in 2015 after a week he just called me that he doesnt want me anymore he has a new lover that he meet in the club i couldnt believe that he can do that to me after all what we been through ups and downs i never think of leaving him. He kept me work in the company but later on he decided to fired me. We had a adopted son that only keeps me going even i am dying inside. While i am writing this i cant stop myself crying i feel too much hurt i still cant jmagine mylife without him untill now hoping that he will be back to me. I just found out that his mistress gave birth already to their child. OMG. We still have contact even thought we are separated now he promise me that we will always be friends forever i treasure my love to him that is why i still having hope but he keep abusing me. Now i am in lebanon he send me here to process some of his legal documents and i am the one to pay for the SPA and my ticket becauese i still trust him and believe whatever he said now i am trap and i cant even renew my visa he is not supporting me anymore. How i can file a case againts him and his mistress, what is the legal act? Please is anyone know attorney here that can help me put him to jail and his mistress i want him to be deported too. Please i need help.Thank you looking forward for response.

    Reply

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