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

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

  1. Lyn

    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..

    Reply
  2. Christine

    Hello Atty. Fred. my husband had an affair. the girl got pregnant but gave birth to a baby girl. I earn more than him and I dont want the money I’ve worked hard for be given to the child in the event that the other party demands for support. Is there a way for me to protect what my kids should solely have? please help me.

    Reply
  3. nia17

    Hi Atty.,

    My husband and I are separated 3 years now. I returned him to his parents because I found out that he cheated on me. And a lot of my friends and neighbors sighted him with different girls during our separation (not legal only verbal). He wanted us back (with my two sons) but really I can’t bear with him anymore, he’d hurt me a lot during the time we are living together.

    At present I am living with a partner, the same with my husband he has also a girl and they are also together. The kids are in my custody. I want to have my kids properly supported because they are schooling now. I didn’t oblige him for 3 years but now that they are studying I want a fair amount of his paternal obligation to go to our children. He only give money, amount varies from P500 – P2500 a month for the two children. At present he is working in a hospital. And I really can’t bear that he would only give money whenever he wants to. I want him to be oblige every payday to give support for our kids needs.

    And also he ask me if I can write a settlement for he wants to marry his girlfriend. I don’t care if he marries again all I want is the support for my kids because that is their rights.
    What can be done to get the support I need for my children “fairly”?. And how to get out of this marriage.

    Please advice. Thank you.

    Reply
  4. susancm

    Dear Atty Fred,

    My husband has an affair with another woman. Although they are far apart this time still they having communication through internet.

    I’m not going to this to get even with them. This is to give them a lesson of their actions.

    My husband went to Philippines so many times since last year till 4th August 2012.

    I want to file a concubinage and consider filing a case as per RA 9262 to both of them. I am gathering witnesses to testify my allegations including pictures in uncompromising position, messages from the other woman confirming of the affair through facebook and my daughter who could testify against her father of the confirmation of the infidelity and verbally abusing me.

    We are both OFW in Dubai and the other woman is in Japan.

    I’m contacting witnesses on the physical and emotional abuse he had done to me and continuously doing to me affecting my emotional and psychological being.

    Please help me on this case. I’ll be coming for vacation by end of October 2012.

    Hoping to receive a reply from you.

    Thanks and regards,

    Susan

    Reply
  5. lesh

    good morning, i just would like to ask something.

    the mistress of my father filed several cases to my mother this may 12, 2012, and it’s already on going on the courtroom. the cases filed where: oral defamation,child abuse(R.A. 9262)and slight physical injuries.

    it was horrible that the mistress filed those cases to my mother where in fact it was her fault at all.

    in the child abuse:

    it was the first day of school of the mistress son and daughter, they were schoolmates of my brother. My mother went to the school and search the rooms of the son and daughter of the mistress. going to the school was one way for my mother to talked to them to please their mother to stay away from my father because the mistress can’t be find no where at that time, i think she was really hiding. we already pleases her to have a talked but she didn’t showed up.

    My mother asked already from the teacher of the daughter of the mistress to have a talked with the child just outside the door of their classroom, so the teacher approve. my mother was really begging to the child to talked to their mother to stay away from my father, so it was really a pleased but it resulted that the child who was 14 y/o at that time spoke some unnecessarily words to my mother telling: “you must discipline your husband and not my mother at all because it’s was your husband’s fault.. your just like a dwarf in your height!”—so the child really indeed insulted my mom..

    –regarding with their cased filed against my mom,, they make the story that my mom hurts the child physically which in fact it was not true at all. my mom already have the certificate from the division principal of the school that there was no maltreatment or physical injury happened to the child at the school premises and there was no complaint at that time. so it was shown that they really have a false sayings just to provoked my mom.

    in the oral defamation and slight physical injury..

    my mom and my brother who was 14 y/o at that time was busy delivering some items from those neighboring houses. my mom used to be a dealer of garments, make-ups and etc. when accidentally, they had seen the mistress visiting their house before, so it was not her already, so my mom called the mistress and asked for a mannerly talked, so the mistress allowed my mom to went inside the house and walked up to the second floor when suddenly the mistress was already holding a steel and she pushes my mom down from the stairs which causes my mom to have some bruises from here body and head, so that was the scenario when they had a physical fight which was in the first place the mistress was the one who started it.

    — the mistress was my mom’s best friend at the first place.. and my mom already do file a cased of concubinage..

    –i just would like to ask if what some certain actions that my mother should do? what should be the correct things should my mother do if ever? please help us.. thank you.. God bless

    Reply
  6. natethegreat

    dear atty.

    kasal po kame ng asawa ko at may isang anak na 1yr and 8mths ngayon po nalaman ko na meron po siyang ibang lalaki kaya po pala ayaw niyang sabihin kung saan sila lumipat ng tirahan ng anak ko. kasama nya din po sa apartment yung lalaki. meron na po akong mga testigo at picture,loveletter sa facebook. pati narin po sa text umamin na meron syang bf. sapat po ba ang mga evicence ko para mg file ng adutery sa piskal po? pwede ko po ba puntahan bigla sila sa apartment na may kasamang pulis pwede po ba yun? salamat po.

    Reply
  7. themistress

    Atty Fred,
    My ex-boyfriend had me as his girlfriend when he broke up with his long time girlfriend. They got back together but we never broke up because he said he wasn’t going to give me up just like that but he just needs to fix things with the other girlfriend since she is threatening to take her own life.. and so the story goes and we had been in a secret relationship for 5 years. This year he was accepted to take a job in Malaysia so he would have to leave the country and he promised to keep in touch with me. 1 week after he left our relationship went smoothly until I found out in a social networking site that he already got married even before he went abroad and was still sleeping with me even after he got married. He didn’t have any plans to tell me anything about his marriage. I just found it out that’s why he had no choice but to tell me. Could I file a case against him? or worse could her wife file a case against me? I really had no idea he already got married. Please enlighten me.. thanks!

    Reply
  8. stressedmom

    Dear Atty,
    Isa po akong OFW and i met my partner abroad in 2002. Ang sabi nya he got married few months before working abroad in 2000 and the he is sure that the marriage contract that they got was a fake one since mommy nya lng and nag-asikaso and pinapirmahan lng sa kanila,nagpagawa lng daw sila ng marriage contract since they were having their second child and the first one was born without being acknowledged by my partner.believing his story we got married in 2003 when we went back to the philippines for a vacation.for several years wala na silang contact with the said wife since she also went to work abroad.the 2 kids were brought up by the grandmother only and in 2008 we had a son who is now 4yrs old.now after 8 yrs of no communication the first wife is claiming that she’s very upset with what my partner has done and is planning on filing a bigamy case against us.my question is: will my partner go to jail for this crime and am i also going to jail and lose my license as a nurse?pls help!

    Reply
  9. kayanglucile

    Attorney,

    One of my client in our Women’s desk is asking what to do about her husband who is having an extra marital affair for 2 yrs now. Her husband is presently working in Dubai and met a girl there and having an affair up to this present. My client is still in love with her husband and she wants their marriage to be in tack in-spite her husbands extra marital activity. What she wanted is to have this girl deported from Dubai minus the husband. The woman is sending Personal Messages in FB and attacking her with bad words. Can we report it in the Consular Office in Dubai? or we can do it in POEA or in OWWA about this woman.

    Reply
  10. concerncitizen

    Good Day Sir,

    My mother is having an affair of another boy for the past year and they had a baby girl but the surname of its is legally from my father at first it was none of his concern after 7 years another boy from Dubai came and they had an affair again for the second time around and another baby girl is born. And now the first affair is coming back and again they’re having an affair i’m afraid that this is too much for me. My mother has no Job as well as the boy. I am just depending with my grandfather’s income.. My emotional and social life is affected due to this concern I hope you can help me.

    Thank you

    AnonymousGirl
    (Concerncitizen)

    Reply
  11. yanyan17

    hi my cousin got married 10 years ago.. he was 21 at that time and the girl was 23. pinilit po nya n magpakasal cla nung gf nya dhl niyaya sila nung isang pinsan po namin. ngkayayaan po sila believing it was secret marriage. they got married on manila city hall. wala po silang pinasa na mga requirements. basta pumunta lang dw po cla dun. nagbyad at kinasal na. when we asked our cousins if nagapply cla for marriage license. they dont even know what it is. kahit ung mga marriage counseling wala po cla. ang alam namin pwd n hindi k n kumuha ng license if u live in as husband and wife for years. but in their case ni hindi p po cla ngsasama noon. so ung absence ng pg apply nila ng license is it grounds for nullity of marriage po ba? and that time they are not serious for settling down. they got married dahil nagkayayaan lang. is it psychological incapacity?

    two years ago the wife accused the husband for having someone else which she cant prove. she filed a complaint. we saw in her complains that she attached their marriage certificate. they already have a license # in their certificate and the place of marriage was in san juan. it should be in manila. is there a possibility of nullity of marriage? i pity my cousin because the wife always threatening nu cousin that she will complain him for the support of their 3kids. she is asking for.big money which my cousin cant provide because he dont have a decent job. and i witnessed in them that the wife are so greedy and manipulate my cousin.. pls help us.. we need ur answers. my cousin was so depressed.

    Reply
  12. cleo

    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.

    Reply
  13. batteredwife

    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!

    Reply
  14. TWILAH

    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 ?

    Reply
  15. jojo corilla lapiz

    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

    Reply

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