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

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

  1. Maethyl

    Hi Atty.

    My mother has committed a adultery without the knowledge of my father and me. But with the knowledge of the family of my mother and it was 5-6 years ago ?! And she was in manila for 3-4 years before she committed it. And last year May 2 my father died . And again my mother got pregnant last august for the second time with her other man and I discover it just now so basically I cannot file an adultery against my mother so what case I can to file to her and to my grandmother who tolerate my mother? I am looking forward to your reply.

  2. Austin

    I am Austin, my wife and i have been together for 7 years with a son, we have always been a one happy family until we started having misunderstanding as she accused me of infidelity, i tried to make her understand the relationship i had with the said lady but she didnt believe me and she filed for a divorce, i tried everything i could to get her back but all was to no avail until i saw a testimony in a love forum about a love spell caster Dr Ikedi from Johannesburg South Africa who casts love spell to re-unite broken relationships and marriages, i contacted the love spell caster via his email and explained to him all that has happened in my marriage, he requested for my picture and my wife’s picture and did a re-union love spell through the effect of the pictures and my wife came back to me immediately, we are back together as a one happy family, all thank to Dr Ikedi, contact him via his email for your relationship and marriage problems at ikedispelltemple(at)gmail(dot)com (Please write the email in the right format)

  3. llezah

    I am 9 years married at may 3 po kaming anak, 2 nag aaral pa at ang isa nagbottle feed pa… I just want to secure the welfare of my child…As of now wala pa siyang trabaho sa pagkakaalam ko waiting na sya for another work bago lang kasi sya na end of contract..May maliit po kami negosyo, net cafe..Simula na umuwi kami in Mindanao wala na akong napala sa kita ng aming negosyo at napag alam ko din po na nag invest ang gf nya ng another units of computer…Paminsanminsan din po pumupunta ang gf nya sa bahay namin ng husband ko….Sa allotment naman sa mga anak ko sya lang ang nag dedecide kung magkano ang ipapadala nya…

    1. ano po pwede ko i kaso sa kanila ng gf nya?
    2.pwede ba ako magdemand kung magkawork na sya uli?
    3.regarding din po sa kita ng net cafe namin pwede rin ba magdemand ako sa lahat ng kita?

  4. Maricris

    Good day, My husband is an American citizen who is having an affair with a 17 year old girl from Olongapo. I have all the evidence from pictures to text and fb messenger conversations they have. Is there anything that I could do so I could file a case? Like concubinage or adultery knowing the jurisdiction problem.

  5. maria

    dear atty. im the wife who was married since 1997,my husband got married in america but when he went home i forgive him becsuse of my 2 kids,and last year till now he sometimes do some alibi to fight with me with no reasons then i saw a plane ticket with a name of both the girl snd him going to singapore i ask him but he denied.now i read a text messages from his fone that girl is his patient before when she is professor in FEU who is now s medical student of ateneo.i want to sue her.what legalities will i do.?

  6. marshall

    I think adultery is not only by eyes to see ,,,,and it can not be proven by surprised alone……there are other factors that prove adultery. For instance, a married woman will leave her husband and go to America for 10 years, and the husband at home waiting for her faithfully, then the woman refuses to return, and every year she promises to return but futile,,,,,,,then the communication will be less and less, and it appeasers that the woman are involved with another man , FOR A WOMEN COULD NOT STAY ALONE FOR 10 YEARS WITHOUT MEN, ESPECIALLY FILIPINA WOMEN,,,,,THEREFORE THE CRIME OF ADULTERY IS THERE WITHOUT A SHRED OF DOUBT, IN FACT MULTIPLE ADULTERY,,,,THEN THE WOMAN DECIDE TO COME BACK HOME, AND THE HUSBAND WILL KILL HER,,,,,< most judges are not using common sense, and claim that we are not the soul owners of our wives, but that is wrong because we own one another, and we had a marriage contract, and even the religion says that HUSBAND AND WIFE WILL BE ONE,,,,,,,,,,CONCLUSION: '' there are many ways to prove adultery.

  7. mario

    patulong po…
    married for 9yrs (civil wedding) ang asawa ko ay ofw..ilang beses ko na siya nhuli na my ka chat at naging ka relasyon nya..at bago lng ay nahuli ko dn cya na nag uusap sila ng bestfriend nya..sinabi nya mismo s chat na my ka secret affair cya..tanong ko lng po kng ano pwde ko gawin..my ebidensya po ako my screenshot ako ng conversation

  8. Fred

    Hello atty;

    Have a good day po. I need an advice to help my friend(single) out here in abroad.

    May bf po sya ng 2 yrs na. Sabi sa kanya ng lalaki na separated na sila ng kanyang asawa at malabo daw na magkabalikan pa. Kaya siguro sinagot naman sya ng friend ko. Parehas sila ng bansa nagwowork un nga lng iba ang workplace nila. Pag umuuwi sa city ang lalaki ay nagkikita sila at nakakaroon pa ng pagtatalik. Inakala ng friend ko na OKay lng ang lahat hanggang sa nalaman nya na hindi pa pala sila hiwalay. Nagbakasyon kasi ang asawa niya at nalaman na may ibang babae ang kanyang asawa. Laking galit at masasamang salita ang inabot ng kaibiganko sa asawa ng BF nya. Bumalik sila sa Pinas pansamantala para magbakasyon kasama ang kanilang pamilya at nagplano daw na magwowork na rin ang babae kaya after a month ay babalik na sila.

    Lahat ng masasamang salita ang inabot ng friend ko sa asawa ng BF nya na kung iisipin di nmn inakala ng friend ko na okay pa rin pala sila at nasinungaling lng ang lalaki. Nagbanta daw na magkakaso ang asawa laban sa kanya. magfiffile daw sa PInas at pagbalik ay magrereklamo pa daw sa police dito sa abroad (middleast country).

    Takot na takot po ang kaibigan ko. Di na halos makakain, naawa po ako, kasi baka mapahamak sya sa banta ng asawa. Nag plaplano na tuloy magresign sa work at lumipat ng ibang bansa. Pero iniisip nya baka daw pag umuwi sya ng Pinas ay bigla nlng sya damputin.

    Atty tulungan nyo po ako kung ano ang iaadvice ko sa kaibigan ko ngayon. Para malaman nya kung ano ang dapat na gawin habang nasa bakasyoon pa ung mag asawa. Wala po ako matanungan hanggang sa makita ang blog na ito.

    THank you in advance.

  9. rene

    dear attorney. oct 11 npunta po aq ng qatar pra sa work. jan 7 2016 naging magkarelasyon cla. inamin niya 5times cla nagsex. sa may guadalupe. nagkaroon ng boyfriend ang asawa ko. nabuntis po xa ngaun 3 to 4 months n po. d q alam ang apelyido ng lalake dhl ayaw sbhin ng asawa ko. gsto ko po sana makulong ang lalaking bumuntis sa kanya. na chef sa isang restaurant sa makati. d q po alam kung saan. ano po ba maipapayo nio na dpat ko pong gawin? salamat po. napakabigat at napakasakit po. gsto ko makulong ang lalaki. nag end relasyon nila jan.31

  10. Maylene

    Hi, I got married in 2000, left for abroad in 2007 and never came back to our marital house. I was a battered wife for 7 years and never complained he has also issues during our 7 years of staying together with other women and I have solid proof. I only decided not to come back to him when I got back to phils 2008. Now he has another woman and children and they are living in our marital house. It’s so sad that the annulment cost is so expensive that I never had a chance to file it. Now I got an information from our common friend that he has filed presumptive death and has remarried the woman whom he got child. All I want is be free of our marriage or be annulled. So what can you advise given the current situation?

  11. Beth Paula

    Atty I ak separated but not legally separated to my husband kasi hindi pa nman po annuled kasal namin. For many years nya po kami ina abandonar ng mga anak namin. Parents ko po ang nagpatapos sa pag aaral niya. Noon po wala rin po akong work kasi pinatapos din ako ng parents ko after sa kanya. Kaya lahat ng gastusin sa mga anak ko po ay galing sa parents ko. Nung nagtrabaho na po ako medyo nakaluwag rin parents ko. Pero husband ko umalis na po sa amin. Ilang beses po akong humingi ng tulong sa kanya at sa pamilya niya dahil nagkasakit mga anak namin o di kaya nasa hospital kahit counter part lng hindi po sila nagbigay ni piso. Dumating po ang panahon na nakapagtrabaho xa pro wala siyang ibinigay para sa mga bata tapos nalaman ko may iba na pala siyang babae. Hanggang nalaman ko nagkaanak na sila. Doon na po ako nabahala kaya nagpatulong po ako sa lawyer dito sa amin. Kaya pinadalhan siya ng demand letter. After that nagbigay lng xa ng konti ng ilang months. Pagkatapos stop ang pagpapadala niya kaya pinadalhan siya ulit ng second demand letter which is stated kung magkano ang ibigay niya sa amin. Nagbigay mn xa pero konti pa rin at hindi sapat sa dalawa naming anak. 1 to 2 thousand lng ibigay niya buwan buwan. Malaki na mga anak namin. Ang panganay grade7 at ang bunso grade 4. Pero ilang buwan lng kasi nagagalit ang live in partner niya. Ayaw daw niya na may kahati xa sa lahat. Kaya napilitan abogado ko na magpadala ng last and final demand letter. Kaya nagpilitan nanaman siyang mgpadala pero 1k lng. Ilang buwan lng din hindi nanaman xa nagpadala. Pero bago yun kinausao niya ang mga bata na pakiusapan ako na hindi na lng magdemanda sa kanya kasi daw kapag nakulong xa wala na siyang maibigay na tulong. Mga anak namin ang nakiusap sa akin kaya hindi ko po tinuloy ang pagfile ng abandonment. Tapos hindi na rin po xa nagpadala. Nagpadala xa ulit last March pam bday daw ng mga bata. 2 thousand po pinadala niya. Yun pala kasi nag apply na xa para seaman po. Iyon lng huli niyang padala. Tapos ngayon po malapit na siyang paalis kaya lng kailangan niya yung ipina pa open na bank account sa akin para sa mga bata. Bale 3 po kami, mama jiya, babae niya at ako. Ang masaklap po sa lahat ng ginawa ko sa kanya ako pa rin at mga anak ko ang huli sa option. Bakit? Ang ibigay daw niya na allotment sa amin konti lng sapat daw pagkain sa mga bata at baon. At reason niya dahil may iba na daw ako ngayon. Noon wala konti lng, ngayon may iba na ako konti pa rin. Minsan nga muntik na mamatay anak nmin dahil sa dengue ni pisong tulong wala siyang ibinigay sa amin. Tapos siya at pamilya pa nagagalit sa akin ngayon kasi hindi pa po ako nag open ng bank account sa bpi. Sabi ko po sa kanya hihingiin ko ang para sa mga bata, kahit pa sinabing 80% talaga dapat mapunta sa amin kahit 60% na lng para nman may maibigay xa sa mama niya at sa ka live in partner niya kasi may anak sila. Lalo siyang nagalit nung sinabi ko na kung ayaw niya kasi ayaw talaga niya pupunta kami ng mga bata sa poea at doon kami mgreklamo. Sinabihan po niya ako na kapag ginawa ko daw mas lalo daw wala siyang ibibigay sa amin. Sisigutadohin daw po niya na zero kami. Tanong ko po attu., pwede po ba na zero kami? Kami yung legal, kami yung iniwan at inabandonar… 2nd question po, magkano po ba talaga ang dapat sa amin ng mga anak ko? Minsan nga yung babae pa ang parang tunay na asawa kung umasta at ako yung kabit. Atty., ano po ba pwede naming gawin ng mga anak ko? At huling question po, magbukas ba ako ng bank account o hindi?

    Salamat po. Sorry medyo mahaba para maintindihan. Yan na talaga ang brief summary.

    God bless po!

  12. Rosinee

    Dear atty,
    My friend had a case in the Philippines Staffa, she lefted Philippines in order to pay her credits. The husband having now another woman and they have 2 children, and my only child daughter living with my husband and the mistress , but they are not treating properly my daughter especially finanacial.. As long as they feed everyday that’s it…. Now is my friend family can file a case? If not because need my friend appearance, is the family of my friend can demand separate alotement since her ex husband is a seaman … Only alotement for her daughter .. Can we file complain to POEA???
    Thank you.

  13. mark

    I see this is a very old post but i was wondering the law surrounding a woman who tells me she has split from her husband but cannot afford an annulment. I am looking at buying property (condo) in phillipines and wondered if i provided that home for her and her children what are the laws surrounding my property ? Also what are the laws surrounding her husband ? is it still adultery even they are no longer together ?

  14. Jean

    Dear Atty,

    I am married and we have a daughter. Im working in Dubai and my husband is in Canada and our daughter is in the philippines. Out of the blue my husband stressed that he applied for a divorce in canada without any reason and my knowing. My husband owed me a lot of money that debt me alot and tied me here in Dubai.

    He is not also regularly sending allowance to our daughter and not also minding helping me pay the loans i have which he used in applying for canada.

    Now, divorce is there.. and another revelation that he will be having a son. He has a gf in canada and currently pregnant thats y he will divorce me.

    My husband is only 1 yr and 2 months in canada.

    I already ask the help of the both consulate but i didnt get a good respond from them.

    Please can u help me. Find ways on how can i chase my husband from his responsibilities n obligations to us..

  15. katherine


    Just wanna ask what case would be valid to file against my husband he confess to me that his mistress is pregnant and he is giving financial support.We just got married on thru civil wedding here in manila i’m so confess if our marriage is valid since we did not married in church.

    I just want to know my rites as his wife although he has no plans of living me i just wanna know if I’am
    entitle to any legal actions should the pregnant woman is enough to file a case, Iam really need your
    comment on this..

    Thank you


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