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

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

  1. Shalini

    My friend is married and divorce case is pending in the court .Since my friend is getting old,he likes to have a child through an unmarried girl.Will it be counted as bigamy?What are the legal problems he has to face after the child birth?

  2. sheilah

    Hiwalay n po kami ng asawa ko 3 years n po,pero kasal po kami year 2010.now my asawa at anak n po sila 1 y.o n po yong bany nila.pero my anak din po kami she is 6 y.o,nong naghiwalay po kmi nsa knya po yong anak nmin,pero ngayon po kinuha ko n po s kanila kasi nong ng vacation po siya samen yong anak ko nagsumbong po sa akin n pinapalo at sinasabunutan po siya nong step mother niya..tapos last po day nagtext po ako don s asawa ko n magpadla siya ng sustento s anak ko,pero sabi po nong girl makapal daw po mukha namen,ayaw po kasi magbigay ng sustento nong tatay niya,e pano po yon kami po ang legal diba po mas my karapatan kami .
    Advice naman po please

  3. Lani

    Dear Atty.
    Good day!
    My husband is working in Paris and it came to my attention that his having an affair with a filipina also in the here, in the Philippines for 5 years now. But still my husband communicating with me. I want to file a case against them. What evidences should i present? I want them to be block in the embassy. Coz My husband will go home and the will girl go with him Manila.
    If i will file the case against them will the embassy of France send them back here in the Philippines to face the charges?
    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?
    Thank you much. I hope and pray to hear your answers soon.God Bless!


  4. Alle

    Hi I would like to ask what case i can file to my husband just recently got the papers from NSO that he was married. Its been 3 yrs since we never heard anything from him, not even allowance to my daughter hes not giving. He just abandoned us for nothing his parents also not tellin us where is he.

  5. Sarah


    My husband of 18 years is working in the Philipines. In to 2012 he a child with a woman there i live in South Africa. She contacted her and told her he was married and she was shock so I forgave then and thought we had moved on. She told me she was now married to another man and they share a son. to may amazement found out they have just had another child. What leg do I have yo stand and how can I contact her or take actionwhat are my right as this mans wife


  6. Ger

    Dear Atty Fred, my son-in-law is a member of the US Armed forces and was stationed in Korea for 9 months, during this time he meet a Phillipino B_____h and began having an affair. His wife and 3 children were stateside. The soldier told his wife that the B—-h was pregnant, however has since lost the child. The soldier is now asking for a divorce so that he can bring this native Phillpino B—h to the US. Here is the problem this person is married and has a husband and 4 children in the Phillpines and is working in Korea as a barmaid. This person has harrassed the wife and is calling herself Mrs. B. I am contacting our state department to try and block her request to enter the US. What can be done from your end. I also know that the Husband in the Phillpines has talked about committing suicide because of this problem. Your response would be greatly appreciated.

  7. Melinda

    I am from China, i and my husband has been separated for 8 months now, he was the love of my life and the father of my two kids. He went out with another lady. I tried love potions and voodoo magic and the Ancient Kama Sutra just to have him back him back home to love me and settle down with his family again, it doesn’t work. I was so frustrated seeing all effort becoming waste, i was so lucky i heard about Dr Priest Okojie from the shango temple. I’m so happy he was the final solution to the problem i have been fighting for almost 6 months now. I will as well like all those who are having problems such as relationship issues, fertility problems and financial difficulties or simply you need a promotion in your carrier just contact email:shangosolutiontemple @ yahoo . com Dr Okojie from the shango family temple and he will solve your problem with ease withing just 4 days.

  8. edwin

    Dear Atty.
    Ask ko LNG po ang asawa ko iniwan ako for more than 1 yr.same Dubai km I parish as wala CIA message skin lag I along ngmemessage sa knya wala CIA reply .umuwi CIA sa pinas umuwi run ako.nakita ko sa cp nya my picture sila ng lalaki nya at mga conversation na my I luv yohan same is at is a.matibay ba yon na ebidensya parishas kmi NASA Dubai. Tnx po San po ako pwdi lumapit kasal po kmi at my isang anak sana po ma advisan u ko tnx

  9. emely

    what if im not married to my husband but i want to file a case for my husband and her mistress??? pls help me thank you. where are live in partner

  10. Anne


    Gusto ko lang po marinig yong advice nyo kung anong dapat kung gawin. Kasal po ako sa isang american at sa manila po kami kinasal (civil) pero hindi po sa registrar namin finile kasi nga limited lang yong stay ng husband ko,yong judge napo naglakad ng papeles namin yong birth namin dalawa at cenomar lang po binigay namin at wala pong parent consent kahit 21 pa ako that time at hindi rin po alam ng parents ko na nagpakasal ako doon.Feb.14,2012 po c hubby dumating sa pinas tas nakalagay sa date ng marriage licence namin feb24 at sabi ni judge ok lang daw mauna ang celebration kahit walang licence so kinasal kami sa feb 19 kaso c hubby umalis ng pinas madaling araw ng 24 at ang nakalagay date of marriage namin both registrar and Nso cert is Feb 25,2012 at may mali po sa marriage contract kasi sa part na parents who gave consent or advice is nakalagay po yong pangalan ng papa at mama ko kahit matagal ng patay c mama po. 6months after ng kasal namin naghiwalay rin kami,inabandon na nya ako at wala kaming anak at hindi rin kami nagsama at ngayon kasal na cya sa US,ano po dapat kung gawin,is my marriage null and void?Do i need to file annulment to erase my marriage?need your advice pls atty.

  11. Lyn

    Ask lang po sana ako ng help kung pano ko po makakasuhan ang husband ko na nagwowork sa Singapore? Last year po inamin nya sa akin na may kinalolokohan syang babae pero hndi pa rin po makapaniwala n tapos na ugnayan nila. dahil ganun pa din po ugali at pakikitungo nya sa akin. lagi pa rin sya naghahanap ng mali para mag away kame. ngayon po plano nya daw mag file ng annulment. sagad na po sa buto ang kawalangyaan nya sa kin. kaya buo na po desisyon ko na kasuhan sya. anu po ang dapat ko gawin? maraming salamat po.

  12. Choco

    Hi I need help,
    I have a relationship with my sons dad. He had a child in his first relationship and than got married to another later n had a another child with her. Than he had yet another relationship with another woman and had yet another child and this continued on to the forth woman. I’m the fifth one and all this time he proposed marriage, met my family and we lived as couples and had a son. I was aware of his past failed relationship. Just a week ago I found out he was seeing another woman. I want to get summons or maintenance or what charge should I take him in for…


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