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 โ€œelementsโ€ 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

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

  1. Pink

    Atty. What if my husband is at the other country and having an affair with her co worker chinese I want to know if what can I do so to them so my husband will sent home back to me.

  2. Sweet Flick

    Hellow poh

    I’ve been married for 25 years, on 2007 I decided to get a job because my husband do not have a fixed or permanent job at that time when our eldest ( our daughter ) will be in college. So I decided to work, my daughter is now working and i’m working hard to send our youngest ( our son ) to college. Since I have been working, my husband still did not have a job until last November 2013. He is staying with his mother hen until now because it is near his work place. And when he started working I haven’t heard from him anymore… everytime I text him… no replies… everytime I call him… he doesn’t answer my call… and then a few friends told me that he has someone else in his life now… at last after pleading to him that we have a talk… he finally talked to me last December 2014… he confirmed that he has a GIRLFRIEND ( who has a son with another man ) and that we are better of this way… ….as I repled ” pano naging girlfriend yun eh may asawa kang tao so KABIT ang tawag dun… knowing na alam nyang may asawa ka ” ….. I was hurt badly specially when he told me na wag ko sila guguluhin ๐Ÿ™ I went to my mother-in-law to ask her if she knows the situation that we are in now… and she knows… my husband and I talked with his mother and he said that he will fixed things up with the other girl and that he will talk to our kids about our situation…. I finally talked to my kids about what their dad told me… for the first time my kids cried and it broke my heart… after my confrontation with my husband…. again…. I haven’t heard from him…xmas passed.. new years passed…I tried to contact him thru texts and calls but to no avail… he even block me in his fb account ๐Ÿ™ and the other girl also block me in her account ๐Ÿ™ last week a friend told me that they we’re in baguio uuuhhmmm… MY QUESTION IS DO I HAVE THE RIGHT TO FILE A CONCUBINAGE CASE AGAINST MY HUSBAND??? to whom should I go and ask for legal advise…. where should I file the case and what documents should I prepare for filing this case…. I grew up in very family oriented environment that I hurt me so much on this attitude of my husband of what marriage is all about.. so sad that people now just don’t care anymore on the importance of the marriage vow and the morals it can leave the children… please help me.. badly needed A GOOD ADVICE… Thank you very much… Hope to hear from you really soon.. GOD BLESS !!!

  3. laura

    dear atty.
    i hope u’ll be able to read this though napakaraming sumusulat sa inyo.
    Ive been married for almost 14yrs. And we have two children.Our eldest is12 yrs old girl and 3yr old boy. My husband had his first affair when our eldest was only less than a year.It was our nanny.I saw them hugging each other from our nanny’s bedroom.And another affair occured a year after.It was his officemate.And then a few more affair with our nannys.And the very recent is last July of 2014 until this time.His officemate.This is the longest affair he had.Id like to file a case against them.Please let me know what supporting documents should be considered and to file a case.Much appreciated.LF

  4. Jin

    Dear Atty.

    Im married 18 year at nag loko ang asawa ko at nakipag relasyon sa Tibo. Iniwan nya ang mga anak ko at tumira sa ibang bahay na ipinapalabas na solo sya sa bahay at lihim na nakikipag relasyon sya sa Tibo. Ako ang umako ng lahat ng responsibilidad sa mga anak ko kahit nasa abroad ako at di ko pinabayaan hangang ngayon.

    Gusto ko pong makipag hiwalay ng legal sa kanya dahil may GF na ako at i dont want to give her a chance na idemanda nya ako ng Concubinage.

    Maari ko ba syang idemanda ng Adultery?

    i want to file an annulment. What should i do?

    thanks & best regards

  5. jennifer

    Atty Fred..
    i am living with my boyfriend for over one year..i know that he is married in other country..they are already separated but not legally devorced..now his wife is contacting him again when she found out that his husband is living with other girl in other country.and she said that she will sue us with adultery.. can she sue us even if they are only married in australia and we are now in the philippines?? i really need to know.. thank you so much..

  6. avril

    I would like to consult something. My friend has a husband who cheated her for a long time. It was the officemate of the husband whom he had extra marital affairs. The husband also was engaged in gambling which caused the husband to lie many times to the wife until all their properties were lost. As of the moment, the husband still continues to have an affair with the officemate. The wife now wants to take legal action and file a case against the husband. What could be the possible case to file? Thanks for the response.

  7. bonna

    atty pinay po ako may asawa po akong citizen ship in sweden 2 years na po kaming kasal may anak po kame ngayon na 2 years old na din po atty mahirap po ang buhay ko dito sa pinas since na nakilala ako ng asawa ko hanggang pinakasalan nya po ako atty ang problema ko po sa asawa ko minsan nag papadala po sya sa amen ng financial support sa anak namen minsan po 4 months to 6 months wala po syang padala sa amen atty ano po ba ang dapat kung gawin eh hindi kona po sya macontactes sa ph naawa po ako sa anak namen wala po syang pakiaalam kung saan kame nakatira ngayon maraming salamat po take care and god bless po


  8. NAsh

    What if the wife hAd sexuAl affair with the husbands brother? And the husband was affected with std coming from the wife? What could be the legal grounds to be filed against the wife? After the husbAnd found out the sexual affair of his wife, he then found a girl later on, can the girl be called as mistress? Can the wife file a case against her knowing the wife first committed an affair?

  9. Anne

    Dear Attorney,

    I want to sue my ex husband because he has a mistress before I left our country and I just found it out when one month ago, when I’m outside our country. Can I sue him even I’m not there in the philippines? Thank you

    1. Atty.Fred Post author

      Anne, as a rule, the complainant must be present to execute the complaint or complaint-affidavit. In case of absence in the Philippines, there are a number of options, depending on the circumstances, which you can discuss with your lawyer.

  10. badong

    Iโ€™m working abroad. I recently learned that my wife got pregnant by another man and she admit. Can this be used as a ground for annulment/divorce/legal separation? Can I have custody over our child?

  11. constance

    I recently found out than my father has 2 illegtimate children with his mistress and they were living in our old house. I wanted to file a concubinage case against them . What are the procedures ang what punishment will they get?

  12. constance

    At the moment,my mother has no idea,what my father had done.. And i wnted to convince her to sue them.

  13. Mae

    Greetings Atty. I’ve been your follower just this week long. I consulted years ago about how to sue my husband for his unfaithfulness obtaining the evidences I gathered from emails and text messages coming from his other girl/s. But I ended up forgiving him for the sake of our son and because I wanted to save our marriage because I still loved him. Now, it’s different case .

    My story: We are married for 8 years up to now. I discovered my husband’s unfaithfulness since I was 7 months pregnant up to last year (2014). He is seaman and I discovered his affair almost every year with different girls. After my husband fooled me many times , I fell out of love and asked him for a legal separation but he’s trying to find a reason against me about my decision. He accused me that I am having an affair with my officemate. He printed my Facebook conversation with my cousin regarding my feelings with my officemate- that I already love that guy and how he supports me financially and that he helps me finding a job (thru his referral) which is true. My office mate and I fell in love with each other but we know our limit of friendship that we are both taken and even if there is mutual feelings more than just friend, we chose the righteousness.. I also sent “I love you” message to my officemate thru facebook. He also discovered from my son that during his on board, that guy went to our home several times during occasions (with my mom around). he slept in our living room once or twice when that guy visited in our house but I told my husband that he is just a friend of mine. I couldn’t blame my husband if he thinks I cheated on him. But I explained to him that he himself is the reason why I’ve lost my trust and love for him. I told my husband my willingness to fix our relationship again and to try to put back all the way it was before but when he discovered about my officemate, he renounced me and didn’t believe my explanations. He commanded me and my mother to go and leave our home right away even after denying about his accusations.. He also demanded our child’s custody (who’s 10 years old) with an arrangement that my son will be studying and staying with him during weekdays while weekend is mine. He doesn’t also allow our child to spend his summer vacation with me because he want to stick with the schedule arrangement whether vacation or not- weekdays is his while weekend is mine. He also told me not to claim all my rights as his spouse (conjugal properties including allotment while his in abroad) and he’s demanding my share for my son’s necessities. It seems that he’s too demanding that he dictates all in his favor. I am afraid because he is threatening me that he will revenge. my officemate told me that my husband went to his company employer and revealed to the Board of Partners about our suspicious affair showing the printed facebook conversation as evidence. He also told this problem to all his family, to some of my relatives, to his friends, to the neighbors and to the school principal and teachers of my son. Now, I am living in my mom’s home. Our conjugal house was lived by my in-laws. Allotment is also received by my in-laws and my son is now living with them while my husband is on board. This really affects my dignity.

    Queries: Does my husband has a chance to win if he sue me for adultery and can get me into jail?

    If he file an annulment on grounds of adultery and was found guilty, will I still be sent into prison?

    How about my child’s custody? What if he force my child to stay with him or with my parent-in-laws if he’s away? What should I do? How can I win my child’s custody?

    Lastly, can I counter attack? Is there a chance for me to file a case against him? if yes, what would it be? does my office mate need to file a case against him? If yes and if there’s a higher chance for us to win the case, would my husband be permitted to go abroad during the trial?

    Please help me with this.

    Thank you and more power!


  14. Angelina

    1.) Saan po kaya ako makapag file nang Demand Letter para sa mistress nang husband ko na nasa Philippines? Ano ang mga dapat kong gawin para kahit nandito ako sa America, mai serve ko sya nang Demand Letter? Nabasa ko po na sometimes mas mainam na bigyan nang Demand Letter ang mistress kesa mag file nang kaso.
    2.) Gusto ko po na makakuha nang copy nang mga perang padala nang husband ko sa mistress nya sa Western U. Napakaraming perang nahuthot ang babaeng yon na nagtatrabaho sa bar.
    Gusto ko pong bigyan nang leksyon ang mga babaeng katulad nya na walang delikadesa at immoral.
    Please help!

    1. rosa

      hello po… married po kame ng 30 years at nalaman ko na may babae ang asawa ko. ginastosan na po sya ng asawa ko binilhan ng aircon at refrigerator. pwede po ba malaman kung pwede ko mabawi ang mga kagamitan na binigay ng asawa ko. ang recibo ng mga gamit na binigay ay nasa pangalan ng asawa ko po.

  15. lorylee

    Dear Atty,

    kailangan ko po ng tulong ngayon dahil may babae ang asawa ko at nagkaanak pa sila.di man sila talaga nagsasama ngayon pero ngstay ang asawa ko sa bahay ng babae sa laguna ng ilang arw sa isang linggo.Ano po ba ang pwede ko gawin?


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