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

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

  1. george

    i would like to seek advice , or if someone encountered the same situation I have,
    This is regarding child support w/c was not basically the problem because it was not neglected at any point ,the question is? Except from monthly child support and extra allowances provided by the father ,Is the mother of the child entitled to demand for a percentage in the 13th month salary and incentives of the father where in fact the father also decided to shoulder all christmas expenses of the children.
    Hoping someone could help me w/ this..

    Reply
  2. Lane

    My husband is in a relationship with a girl, and the mistress got pregnant. What case can I file and is it considered as criminal case?

    Reply
  3. Raymart

    Dear attorny

    Ask q po kung anung pwede gawin….yung fathet q po kasala po sa mama q…. for almost 27 years…. nag karoon po ng other woman father q. Napa blatter pa namin nuon huon babae way back 2010. Pero tuloy parin po sila hanggang ngayon na nag ka anak sila ng dalawa. Yung babae biglang umalis at mag tratrabaho daw at inawan sa father q yung dalawang bata at kami po mag kakapatid at mama q ang nahihirapan sa pag aalaga sa awa nrin sa mga bata at dahill narin parang mas gusto prin ng father q yung babae eh at palaging mainit na ang ulo sa amin sa walang kadahilanan.

    Tanong ko po ang pwedeng aksyon ang gawin ng mother q.
    At maari rin po ba namin ibalik sa nanay ang dalawang bata.
    At kung ano po ang pwede ireklamo sa babae.

    Reply
  4. Krisha

    Hi. I just find out that my husband is having an affair with his office mate. I saw a “sex stories” that this woman is sending to my husband in order to seduce him. I have a picture of that text message together with the cellphone number of that girl. But that’s the only evidence that i have. I only knew that they have a sexual intercourse because my husband admit it. Thats it. But no evidence. The question is: if ever i see this woman again and i intentionally hurt her or kill her (any physical injury may inflict); am i still be defended by RPC, Article 247? Or if not; what case be possibly file against me?

    Reply
  5. Siony

    Sir/Madam,

    Good day…
    I just want to ask if: Is there any time limit to accuse a person in the case of Concubinages…separated for 17 years ago, due to that they’re in abroad the husband ran away and hide from the wife. But the wife discovered that the husband has an another family since they got married. I mean he has a child already before they get married. Can still apply Concubinages Case? so confused due to the family relation is very close to the legal wife…

    Reply
  6. Complicated

    Hi I caught my husband chatting with other girl and this girlnusing a man’s name to hide her profile. But my husband admits that it was her colleague. I have the copy of their conversation and that is all I have. I wanted to ask if I have the rights to go to their company and talk to the hr office to fire the girl or my husband what would be the legal action for this I hope that you can help me. Because I don’t want to make this problem ge th bigger until something bad happens. Please help me. Thank you so much.

    Reply
  7. brenda

    HI,
    My husband kept a mistress for more than 4 yrs when the mistress was dying he told everyone, and they had a child, same age with my youngest daughter.
    Unfortunately, the mistress died in 2015. What is the legal implication in terms of filing a case? can i still file concubinage? He hasn’t done property settlement and uses my big children to tell them that your mother is getting your inheritance. they are being told that matter.
    Can i file vawci? legal separation of properties? i am still legally married to him, but live here in Australia, for 4 yrs now, i am still filipino citizen..Pls give me legal advice as my husband stopped the child support of my 8 yr old daughter who is with me here. he stopped for 2016 then resume in october 2018, stopped again this february 2018, he does it if i fight on my property conjugal share.
    thank you

    Reply
  8. Son

    Hello!

    My dad had an affair with a married woman (the woman’s husband was already living abroad, abandoning the family) 10years ago. They ended the relationship 9 years ago and my dad confessed to my mom. They were able to settle things and now we’re living happily.

    Last year, the husband (of the woman my dad had an affair with) went back to our country in the persuit of starting anew with his family and found out about the affair from years ago. Now, the husband wanted to file an annulment case against his wife.

    My question is, does the husband have anything to file against my dad? He’s kind of threatening my dad about it, and my mom’s afraid of it.

    Reply
  9. Christyl

    hello good day..ask ko lang po kung pwede q po vah ipa brgy. ang babae ng Asawa q. Hindi q po sila Nakita in actual na magkasama. pero may nababasa po akong sweet conversation nilang dalawa. gusto q po harap harapan na makausap ang babe in legal ways.

    Reply
  10. Maya

    Hi Atty..

    This happened on 2016.. So my girl “friend” lives with his live-in partner togther with her 2 kids and their daughter… His live-in partner found out that she was flirting with another guy ((workmate)) and had a one night with him.. His live-in partner forced her to stop working and stay on their house.. and by then, he started to physically, mentally, and verbally abused my friend. By 2017, my friend decided to go home to their province with her two kids,, so their daughter was left to the father.. By then, the livein partner stop supporting them financially.. and now the girl wants the custody of their daughter. (By the way she is just 3 years old.) but the live in partner refuses to give her the child.. Now she needls legal advices regarding the custody of their daughter,, and if the live in partner has the right to sue her for what she did on the past.. Thank you ATTY.

    Reply
  11. Annaliza

    I caught my husband having an sexual relationship online with a woman from zarraga iloilo lets name her Miss A. My husband is canadian and i am a filipino. We live in the philippines. Will i have the grounds to sue them? He has been sending money to this woman i have all the recordsand all their dirty/sexual conversations though they never met physically. Its causing me so much trouble..not a ble to sleep nor eat and now im getting angry all tge time. There are moments that i even want to give up on leaving. Now i am just thinking of going legal to make me ceel better and as well as save myself from all these embarassment that they caused me. Thanks

    Reply
  12. Momging

    Honorable sir,
    Can i file a case for discovering my husband and a woman texuing each other ilove yous?
    What can i do?

    Reply

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