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

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


    gusto alamin kung ano pong kaso ang puwede ko i file sa aking asawa at sa kanya kirida my anak n sila at paano ko pa mpili ang asawa ko igibay ang tama niya kita par aaming mag ina my kumunikasyon a po kami kaso mADALNG NA MY BALAK N PO SYA UMUWI DITO SA PILIPINAS KASO DOON DAW CYA UUWI SA KBIT NIYA PUWEDE U B AKO TULONGANG PARA MBIGYAN NG SI NG ARAL N DAPAT ANG TAMA AY TAM

  2. MIKO

    Good morning atty..

    Tanong q lng po qng anung kaso ang pwd qng isampa sa asawa qna c rose ann. Hiwalay na kmi 3 years ago pero kasal po kmi. This year q lng na nalaman na nanganak xa sa new partner nya. Pwd po ba ung ginawa nya na ibang surename po ang ginamit nya?
    Anung kaso po kaya pwd qng gawin para mawalang bisa na ung kasal nmin??
    ung anak q iniwan nya lng sa daddy nya at katulong.. panu q po makukuha ung bata na pinabayaan nya??

    Sana po matulungan nyo aq. Salamat po. Godbless!

  3. Bea

    Can a mistress file a case against through me (which is the legal wife) even though we’re not married yet? But I have kids.

  4. Ed

    Im married in philippines and now living abroad. Found out my husband jas adfair for 5 yrs can i file a case in phils? Thanks

  5. Lori

    my friend got married August 1989 to her first husband and got married again to another man July 2014. She faked the death of her first husband by producing a death certificate in order for her to marry her second husband. The first husband still lives in their conjugal house and is not aware of my friend’s irregularities. Now the second husband discovered her first marriage would like to file a case of bigamy against her. Aside from bigamy what other offenses did my friend commit?

  6. eric

    my wife and i got married in 2002 and we parted ways after 2 months.

    she had a family of her own and she has a daughter. ( now in preschool)

    i also have a family of my own . i have a son (3 years old and 9 month old daughter )

    question: can i be filed with concubinage even though my ex wife has a daughter older than my son?

    she didnt filed any until last friday… we separated almost 11 years and just now she filed concubinage against me. she also knew about my past relationship with other women…

    is that legal?

    pls help…

  7. Pingback: Dumb Laws in the Philippines

  8. Elena

    dear atty

    last year i found my husband with other woman and he choose to leave us and be with that girl.. i just like to know what should case i will file .. please do help me i am a mother of four kids and i need to fight for my kids support .. i dont know how to start .. what will i do

    badly needed advice

  9. suzane

    I was confused my husband was been cheated on me while I’m here in abroad his having an affair with that girl and now they have a baby but unfortunately I have notice that the girl was planning to work abroad in hongkong is there a possibility that when I go back to the Philippines and file the case againts them does the girl can send back to the Philippines for the case I’ve filled for them?tnx and God bless

  10. JHOANA


    sir good day, i really badly needed your advice, i have a friend who accidentally fell in love with a married man. she’s married also. their relationship is on the rocks. the wife of the guy caught the guy and my friend’s conversation on messenger. sadly the conversation had nude pictures. the wife posted the conversation together with the nude pictures of my friend on facebook. my friend was scandalized by the posts. are there possible solutions regarding this case? like cyber bullying, violence against women rights and slander/defamation case . my friend knew that she’s wrong. she’s ready to face the problem. she asked for forgiveness and ready to do everything in legal way. she begged the wife to remove the pictures on facebook for her 2 daughters might see it. she’s afraid that her daughters might experience bullying at school. what can we do?

  11. Emmie B.

    Good day Atty.,

    I am now living with my boyfriend for 4 years, but he is a married man but separated for 6 years until we meet on 2011.He got married way back 2004 but then as he said they got separated within 1 or 2 years of marriage. To make the story short after a year of their marriage after giving birth of their first baby the girl get pregnant again with another man. As he remember after giving birth of their first baby he never got s** with her again since they are having problems with each other and they are not always together since the girl always go at her province, until one day came home and say that she is pregnant. With a doubt he ask his ex-wife if he is the father then she admitted that it is not his child but with the other man. But still the child brings his Family name knowing that its not his child. But after that they separated the girl has another man again and she a present relationship with her Australian boyfriend that they been together since 2008 and we think that shes having a child with her present boyfriend.

    what will we do next if his ex-wife will file a case against us?

  12. Angel

    Good day! May ask, if the wife already filed a “Case on Nullity of Marriage” toward the husband (declaring in the said papers that they are already living in separation for 8 years), can she still file a “Concubinage” case against the husband and his new lover (they have been together for less than a year)?


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