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

84 Responses to “A brief discussion on Infidelity, Concubinage, Adultery and Bigamy”


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  1. 15 imabee May 10th, 2010 at 1:22 pm

    good day!

    my husband is having an affair with his officemate for 4 years now. it came to my attention only this week. i want to file a case against them. what evidences should i present? is audio confirmation enough?

    in addition, if proven guilty, what are the penalties under the law? imprisonment?

  2. 14 klaus.lund May 6th, 2010 at 1:59 pm

    HI !
    One question ???

    I am that lucky to have a philippine girlfried (with philippine passport), we both live in Denmark and she is devorced from a danish man.
    They got married in the philippines, and they are divorced in denmark ( meaning that the danish man has a legal divorce, and are able to remarry ).
    What are the procedures, in order to get the divorce reconiced in Philippine, so thar she can optain a legal remarrying ( under the rules in EXECUTIVE ORDER NO. 209
    THE FAMILY CODE OF THE PHILIPPINES – Art. 26 and (as amended by E.O. No. 227, dated July 77, 1987)

    Klaus Lund

  3. 13 cathie May 5th, 2010 at 3:29 am

    Sir,
    Paano po if naka-file na pareho ng annullment ang 2 tao sa kanila respective husband & wife. At nagsasama na sila. Concubinage or Adultery pa ba iyon? Ano po ang maissuggest niyo sa ganon?

    salamat.

    cathie

  4. 12 babyally Apr 11th, 2010 at 2:15 am

    Dear atty.
    My partner and i having a problem, 5 years ago i met my partner abroad, he told me he’s married but his wife left him for a Japanese guy, my partner and his wife is not legally separated nor annulled but the girl got married with the Japanese guy here in Philippines were she got married before with my partner, it is so confusing how did it happened, but of course they said “money matters”..
    Now me and my partner have a son which is i thought will be ok coz they had a verbal agreement before that none of them will go after with each other, about a couple of months ago the wife suddenly want her husband back coz she is now divorce with the Japanese guy,and because i love my partner so much i was trying to win him back but the wife said she can file a case against me…
    I just want to know what is the best thing i could do in this situation of ours.. Thanks and more power…

  5. 11 depressed Apr 3rd, 2010 at 5:28 am

    Atty. fred,

    Hi! I know people might hate me here… but i hav this problem i need a lot help with. My boyfriend had been separated with his wife for 2 years now. Just a year ago our relationship started and now we are about to have a love child. what then will be in store for us? what should i do? he is also asking me to live in with him now. I am afraid that his wife might find out although she’s working overseas. Please help…

  6. 10 sadwife Feb 19th, 2010 at 9:36 am

    dear atty.

    i just want to ask about the situation of my cousin. her husband had other woman..they had an affair for 5 months.. the husband just confessed to my cousin ( the wife ) when he found out that the “other woman” was pregnant.. the husband chose my cousin.. but we want to file charges to the “other woman”. please advice us on what to do
    what charges can we file to the girl?

    thank you so much

  7. 9 Shiela Jan 23rd, 2010 at 9:51 pm

    Dear Atty,

    Just want to ask about the situation of my friend, first she got married in the city hall with his boyfriend at the year 2003, then after the marriage one day after she found to his bestfriend that his husband is using some drugs, the girl was so confuse and she talk to the city hall secretary not to file the marriage cert. but then the marriage papers was given to her. she kept it until she get marriage again 2004 after 1 year with another man, then after 5 years, she met his 1st husband and gave all the documents to him, as if that documents is not registered to city hall or even in the civil registery, i just want to know if there is any grounds for her 1st marrying? is there any possible grounds? is the 1st attempt marriage can possible be registered again? coz all the original papers was given to the 1st marrying man, although the marriage is legal but it is not fully registered by the city hall and civil registry,

    we just want to know the situation behind this, coz all the papers was given to the 1st married man, he handles all the papers. just want to know is he can file it again anytime and if it can be legal? coz the papers he handles was 2003, and now my friend is confuse coz he’s 2nd marriage was 2004.

    just want to know if the 2003 marriage can be filed again? pls. let me know the answers,

    thanks and god bless

  8. 8 msmarianne Dec 26th, 2009 at 10:27 pm

    dear atty,
    i was married last may 2002 (civil), we had a child who had a congenital decease. july 2003 we quarreled resulting to separation. sinse then we hadnt communication. i raised my daughter alone. sept 2004, i went abroad and didnt come back to the philippines until now. my child died may 2006 unfortunately i wasnt able to see her because i dont have legal documents here abroad.
    last year(2008), i knew that my husband remarry, then after a year he went away from the 2nd wife for another girl. and now he has a baby of 4 or 5 months old to the 3rd girl.
    i want to make an action on this matter but i am not in the country. i want to sue him to court. can i do it?
    thank you so much, more powers. hoping for an immidiate reply.
    God bless you.

    msmarianne

  9. 7 shynneibarra Dec 19th, 2009 at 12:53 am

    good day atty
    my husband is workin in dubai–sadly i found out that he is haing an affair–she is also a filipina
    what legal a(tions should i do
    pls reply asap

    thank you
    sheng

  10. 6 jovz Dec 3rd, 2009 at 2:38 am

    dear attorney, i got some question which is bothering my mind long time ago…i was married to a married man…i never knew that he was married until the ex wife confronted me…and we have a boy who was carrying his surname…at this time we already separated…and i dont know if i have to file an annulment coz i know that our marriage in the first place is not legal…but i have a marrige certificate with me which is really registered in nso…what im going to do?and i want to change the family name of my son…i dont want him to carry his father’s surname….can i register my son again..help me pls

  11. 5 nenski Dec 1st, 2009 at 5:39 am

    dear atty:

    i was reading all the articles and i thought of leaving some questions here that might help me. my husband had this affair with another woman, and to continue their wrong doing they left the country and lived at dubai. and i found out they had a child and they are staying in one home. and he is not sending any allotment for us. my questions are these:
    1. can i file a case against them? what case will that be?
    2. how can i demand for an allotment?
    3. will the other woman be put in prison also?
    4. if i will file the case against them will the embassy of dubai send them back here in the philippines to face the charges?
    5. if in case my husband will ask forgiveness and i will forgive him what will happen to the other woman? will she face the consequence alone? and if in any cases i will also forgive her is there anything in the law that will prohibit her from coming near to my family again?

    i hope to hear your answers soon.thank you very much

  12. 4 purpleheiss Nov 28th, 2009 at 2:58 am

    hi mojo_jolas.so there’s no way to annul the marriage? what would be the REMEDY for this? or is there a remedy for that case? im also a polsci student but when i was in college we’re not able to have an in-depth discussion of the family code that’s why im trying to find out what can i do about this. im one of the concerned person here. hope you could find me an answer. thanks!

  13. 3 mojo_jolas Nov 26th, 2009 at 4:49 pm

    for purpleheiss: (I’m a political science student aspiring to become a law student next school year, this is my opinion based on fact and guided by the law..)

    A cannot file annulment on the basis of vitiated consent. The circumstances in the case at bar does not apply to the circumstances provided under Art. 46 of the Family Code that constitute “FRAUD”. Concealment by the wife of the truth behind the relationship of her husband and another woman which in turn resulted to the husband’s abandonment to the other woman and eventually caused the marriage of the husband and wife doesn’t give grounds for action for annulment of marriage.
    This case is somehow related to the situation of Atty. Alferos (Gaby Conception) and Atty. Ramirez (Lorna Tolentino) from one of the primetime shows of ABSCBN..watch and apply the law!:)

  14. 2 purpleheiss Nov 25th, 2009 at 4:58 am

    i know this is something confusing for everybody who will be reading this so i’ll put it this way.

    A – husband
    C – wife; an ex-girlfriend for 7years
    E – husband has a child with this woman; workmate and unofficial girlfriend for few months, say 6months
    M – boyfriend of E

    here we go.

    Dec 2008 – E and A were living on a same apartment and now E was pregnant to A. At first, E wasnt so grateful to have a child to this man bec she’s still engaged with her boyfriend for 5years. So E had to break up with M on March 2009. Prior to this, A was so intimated with the fact that E still loves M and was thinking that E is just making him believe that she wants him. A was thinking that E is just living with him becauseof the child. On May 2009, A left the apartment and didnt show up for a week. E had been constantly making a neffort to talk to a via calls, sms and emails. A promsied that he’d comback but this show up only after 3months, August 2009. While A is away, C had befriended E so as to get information about her relationship with A. In deep pain, E was saying (thru sms) to C that she doesnt want A and E regrets to have A in her life. Now, C was showing those messages to A making A angry to E but still not talking to E. Still in May, A texted E that he was to marry another woman who was pregnant to him as well prior to E’s pregnancy and that same day A had to attend their marriage. E wasnt aware that this one is just a bluff but for her A wouldnt really do that to her. To sum it up, C triggered the anger of A to E though A loves E so much. It is C who planned for the ghost marriage (didnt really happened) so that E would no longer be persisten tabout A. A and E didnt talk from then on. After sometime in July 2009, C asked A to marry her so that E wouldnt get anything from A just in case the baby will be born. C was so bitter because A dropped her before and she couldnt win him back. A, who was so upset with E, accepted the idea of marrying C since C was so persistent to have A. The marriage was just an arranged marriage in the Manila City Hall. When they arrived there, They just signed for something and then paid someone whom we can call a fixer. Now in August 2009, A and E met again and they reconciled. E didnt know anything only after a week when C, who is in a foreign country now, told E that she’s married to A. A told E that he didnt want the marriage. It’s just that he lost hope that E will comeback to her. Can A file for fraud and have this nullified? Or is it voidable? Cause A wanted to marry E.

    Hope this one will be given an attention. It will be much appreciated. Thank you.

  15. 1 elen_dejesus Nov 24th, 2009 at 2:35 am

    Atty Fred,
    My ex-husband married another woman in 2004, I got a copy of the marriage contract, and they separate, now he is living in with another woman, what case can i file for me to free from our marriage, i am the first wife.

    Thanks,

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