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

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

  1. Peter

    Hi Atty, Is it a Pardon of the offended party? if the offended party already knew about it for many years and had a chance to talk, both the offenders and the offended for some time, but only decided to pursue the case after like 6 years of knowledge of the offense, when the offended party already have a 3 year old child with other woman. Both parties already have their respective new family, yet for some reason the man decided to pursue an adultery case just because the woman is pregnant with his new partner?

    Reply
  2. jowana

    Yung husband ko nakabuntis ng minor age that girl was his ex girlfriend. Then his ex girlfriend nagreklamo. pwede ko ba silang kasuhang dalawa or sampahan ng kaso?

    Reply
  3. Laurice Gem

    Dear Attoney Fred,
    Good morning to you, I am Ms Aquarius.I had an urgent matter that needs your immediate attention. Let me narrate you one by one a situation that happened two days ago.It imvolves two certain public elementary teacher and a companion, not sure who she is.Teacher-A just graduated with a masteral degree and serving the government for more than 10 years. Now last two days ago,around afternoon, Teacher-B from a public school of different school went to Teacher-A school together with one companion and look for her . Somebody from the school told them that Teacher-A is in bldg A. So they go there,along the way they saw Teacher-A and so she lead them to her room. The moment Teacher-A step inside her room,the two others follow and locked her.Then everything happened. Teacher-B keep punching Teacher-A at any direction she wanted,hinila,pinagwagay-wayan,sinabunutan,slapping her face countless time,kinalmot while accusing her of having an affair with his supervisor.Teacher-A was in shock and don’t know what todo but only begging to stop hurting her,and talk the matter with the barangay,but the Teacher-B enjoy hurting her while her companion is taking the full video and from time to time also hitting Teacher-A.It lasts for couple of hours . Teacher-B didnt stop she was so eager to let Teacher-A speak up.,even ordering Teacher-A to call his husband but Teacher-A said she dont know the district supervisor’s number. So, she then tell Teacher-A to call his own husband instead. But Teacher-A said he’s taking care of our baby, if you let just go to my house and let’s talk. You are accusing the wrong person but the teacher didnt tame, still hurting ,slapping, ang crushing. Teacher-A’s face.
    Then suddenly the companion of the teacher go out of the room and shout “hey you, you, you, pinpointing all the co teachers she saw outside, aren’t you going to help your co teacher over there, she cAught having an affair,ung malandi nyong co teacher,ayun binubugbog, that woman is so proud of naming my sister with ill-callings,malandi,puta,etc.not even thinking that hundreds of students are hearing what she’s saying.
    Immediately, the teachers and principal hurriedly go after her.The principal even question Teacher-B that she is tresspasing and that she cannot just do what she did to Teacher-A. Whatever matter should be brought up to the principal first especially these sensitive matter. She had no evidence or whatever.What she had is purely kutob and heresays. The principal even ask one of her teacher to take a video so they were able to get a glimpse of that teacher hurting, cursing and saying unjust and unworldy words to Teacher-A. She even say,kaya kitang patayin akala mo ba,kya umanin kana.Even if Teacher-A keep begging,telling she dont know what happening,its not true,lets talk.but the teacher-B is deaf to hear reasons.
    Now dear attorney my questions is this, because I was so concerned with teacher-A.She is a nice person.And I think it is my duty to help her.She was advised to see a hospital and ask for medico legal,and though she is in deep pain, shocked and shuttered, she even manage to say to her co teachers and principal that she is okay.
    She went to barangay together with his husband to blotter Teacher-B. The principal even call their supervisor and informed him what his wife did to her teacher-A, and the supervisor said, her wife deserve to any legal case whatever Teacher-A decided to file. It is known that it’s not the first time the supervisor’s wife was carried to the judge due to her high jealousness.
    But after the case has been blottered, the supervisor suddenly change his mind and keep at the side of her wife.I guess it’s natural.
    So I pity more Teacher-A .She is so kind.She reached and finished her education through hardwork. And now because the supervisor is afraid that her wife will have a case they join force.He even threaten Teacher-A, and say that they will do something just to win they case.That’s why I’m asking for an advice. I wanna help her, she was so shuttered not even wanted to go back to school anymore.I heard from the principal she is thinking of resigning.I think I should do something because she is a gem. Very nice, very smart and have a very happy family life and with just one false accusation everything will suddenly fall in her.Attorney what are the appropriate cases that can be file against the Teacher-B.Also to her companion,it is also possble to sue her? If ever on what grounds?How about the supervisor with malicious intent? Is teacher-A can ask for moral damages,how about the hundred students who heards the ill-curse/words? On the otherhand,is the actions of Teacher-B is enough to do such horrible things? What are the grounds to say your guilty with adultery? Is heresay is enough?How about positve gesture of an employee-boss is it a basis?
    Thank you so much for spending time reading this.I hope I could find immediate response to this matter so I can help her.I think it is my moral obligation to help. I am just balancing the facts between teacher-A and Teacher-B.

    Thank you so much and more Power!!!

    Reply
  4. Sheryl

    Dear atty. Fred,

    Nag file po ako ng declaration of nullity of marriage sa asawa ko dahil hindi po nya sinabi lahat sa akin ang totoo na dalawa po pala ang previous marriage po nya at pangatlo po ako.

    Matagal na po kaming hindi nagsasama dahil nasa ibang bansa po ako 5 yrs. Ago at ngayon nasa pinas na po ako.

    Kasalukuyang nasa korte na po ang kaso ngayon,
    May nakilala po ako at nabuntis po nya ako ngayon.
    Ano po ang magandang maipapayo po ninyo sa akin.
    Sa limang taon ko po sa ibang bansa nambabae po sya rito gamit ang mga padala kong pera..
    Para po makalimot din po ako sa sakit kaya po, nkipag bf ako pero hindi po kmi mag kasama ng bf ko ngayon nasa ibang lugar po sya at amerikano pumunta lang po sya dito sa pinas.

    Sana po matulungan ninyo nag aalala po kc ako dhl may nk sched n po n hearing this coming oct. Po.

    Pls. Give me advises. Thank you po and God bless

    Reply
  5. Jennilyn

    Good day Atty.

    Meron pong dating naging iabang babae ang asawa ko..napagtiisan at naayos naman po ang pamilya ko.bumalik na kami sa dati bilang masayang pamilya dahil nilayuan na ng asawa ko ang babae nya..pero dahil po sa di ko malamang dahilan..nanggugulo po ang babae sa pamamagitan ng mga post nia pictures kasama ang asawa ko..mga picture na ineedit nia at pinagdidikt sa pictures nia..dahil po sa mga ginagawa nia..nagkakaroon ako ng emotional stress bilang asawa..pwede ko po bang kasuhan ang dating babae ng asawa ko dahil panggugulo nia saming mag anak.

    Reply
  6. CCC

    Dear Atty Fred,

    Please enlighten me on this issue.
    Husband and Wife decided to separate after failing to reconcile. During the first reconciliation attempt, the two didn’t reconcile, the husband asked for the temporary custody to be given to him since the wife will go back abroad. The wife agreed (signed an agreement) because she is going abroad anyway but without knowing that the husband is already living in with his new girlfriend. When the wife knew that the husband is living in with his girlfriend, she changed her mind and would like to have the custody of their three children aged 9,8 and 6. Since the mother is going abroad, she decided to leave the three kids under the guardianship of her single older sister.
    With the presented situation;
    1. will the mother get the custody of her children despite her going abroad on the grounds that the father already has a new partner?

    Your guidance will be highly appreciated

    Reply
  7. Cassie

    Hello. I just want to ask if I can file for libel to someone who claimed that she is the wife of my boyfriend. She posted my name in her status in fb that says I am his husband’s mistress. She also included my family’s surname in her post and randomly sent messages to my family. She even threat that she will file a case against me. Is this a case of defaming? Can I file a libel if she continues defaming me?

    Reply
  8. sheila marie

    good day attorney
    i am in saudi now..and i found out my husband have an affair to other woman..and the girl now is pregnant..what should case i can file for him and to her mistress..

    Reply
  9. Florjane

    Hi good day. My boyfriend has a daughter dun sa ex girlfriend niya (ex live in partner). 3years ago naghiwalay sila dahil hindi sila magkasundo at lage nag aaway at madalas nauuwi sa bugbugan (nagbubugbugan sila at si girl nagbabasag daw ng gamit). A year ago, naging kami ng boyfriend ko ngayon. Since then hindi na kami tinigilan ng ex live-in partner niya kakamura samin lalo na sakin at kakahingi sa bf ko ng mas mataas na amount ng sustento (2k weekly or 8k in 1month). Sabi pa niya mag aaral na daw ung daughter nila and kung saang school niya gustong pag aralin ung bata, kailangang paghirapan ni bf dahil bilang ama obligasyon daw niyang ibgay ang needs nila ng mga bata. Yung bf ko hindi nakinig, since hindi naman ganun kalaki ang kita niya. instead 2k weekly pa rin ang pinapadala sa ex live-in partner. Until 1time nababanggit na ng ex-live in partner ang pagsasampa ng kaso para sa bf ko (RA 9262) and para din daw sakin dahil alam ko daw na pamilyado na pero nakipagrelasyon pa rin ako. Gusto ko lang sana itanong, 1.) posible bang masampahan ung bf ko ng kaso kahit na nagpapadala naman siya 2k weekly? Hindi ba un kasya para sa expenses ng bata, kung equal sana ang share ng nanay at tatay, makakabuo ng 4k weekly. 2.) wala bang law para sa kahit sino (lalake man or babae) ang nagpoprotect sa mga taong nabablackmail or hinihingan ng mas malaking amount para sa anak or else sasampahan ng kaso kapag di nasunod ang gusto? 3.) posible din kaya talaga na masampahan din ako ng kaso for having a relationship with my bf na may anak nga pero hindi naman kasal, at sinusustentuhan naman ung anak nila? Thanks po sa mga sasagot

    Reply
  10. Roch

    Dear atty
    im legally married for 10 years
    Ang asawa ko ay maulit ulit na nambabae at sa kasalukuyan cia ay nakikisama sa babae nia ano legally action ang pd q gawin sa kanila
    Salamat

    Reply
  11. Jay

    I have something to consult. My mother is having an affair with another man, what cases can I file to them? Can I file the case on behalf of my dad?

    Reply
  12. Abigail

    Attny.Fred,can I sue my live in partners girlfriend? dati pa po kc SBI ng girl na titigil na sya sa pangugulit sa partner ko,pero 1 and a half yrs.na nangugulit pa dn pla xa sa partner ko.nbsa ko po tru messenger, ng partner ko,2po pla ang fb accnt.ng partner ko,mag 12yrs.na po kmi,may 1daughter,nsa custody ng parents ko po,nsa bicol.dun na po lumaki,kc po ayaw ng parents ko sa live in partner ko,dhil sa nanakit ito,nambbe pa po,at ang excuse ay,di nmn DW po nagki2ta,sa messenger LNG DW po.bukod po sa girl na plageng nangugulit sknya,mdami pa po xa ka palitan ng chat dun sa is a nya PNG messenger,. Please help me po attny.Fred,naguguluhan na po ako,dati nya pa pong cnabi na di n nya ggmitin ung isa nyang fb,pero lately lng,na found out ko na active pa pla ung isang fb accnt.cnu po ba dpat ang PD ko I sue,ung mga Babae nya po,na Panay chat pa dn,at nagrereply sknya,.o sya mismo?though we’re not legally married, can I still file a case against them.tnx for your kind response, attny.fred

    Reply
  13. Alfie L. S.T.

    Dear Atty:

    I hope i can get an immediate response about my concern. I am legally married with my wife for almost 8years. My wife went to Japan to study and eventually work there. However after 5 months i found out that she was cheating on me. I found that out through her FB account sending nude pictures to each other. I decided to be separated with her because of what she did.
    We have 2 kids that stays on my in laws because they are studying school nearby. my kids are now 10 and 7. I am working in Manila and every sat.sunday im taking the kids with me to my house. What happen was, my wife went back to the PHilippines saying that she is just visiting to see my kids. However i didnt know that she is secretly fixing all the papers for kids with the help of her sister. What happened next, they already in Japan without my knowledge. I thought that she is just here in the Philippines.
    I also knew that they are living in Japan and alleged married to a Japanese citizen and had a baby.
    My question is, how’s that possible to take my kids to Japan from here in the Philippines if she is not married with the Japanese.? What case i can file for to her that is already resided in Japan with her own family and may kids? is there any way that i can let her deported to the philippines with my kids? or can i also file a kidnapping since she took my kids without any consent on my end? and can i also file a case against those accesories who helped her to take my kids away from me.? I would greatly appreciate your response atty.

    thank you so much

    Reply
  14. Maryrose

    Helo sir good pm po..ang aking aswa ngayun ah nahaharap sa kasong adultery ta conbinage..cla nga kabit nya nagfile po ng kaso ay yung aswa ng babae paano po gagawen namin nagyun para mapawalang bisa uung sinampang kaso sa aswa ko.salamat po

    Reply

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