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

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

  1. jazz

    ako po ay hndi ksal sking knakasama my 3 po kming anak. nagkarun po aq ng afair sa ibang lalaki..d q po alam kung legal ang ksal kc sabi nya po wlang merage contract..nsa abroad po ang aswa nya nung tym nto. .umupa po kmi ng kwarto at dun po kmi nagkkta.3 tymz a wik. .d po nmin tnutulugan un kc kailangan dn umuwe.my anak dn po xa. ngaun po.namaty po xa..at nalaman ang tungkol samin ng asawa nya.umuwe po. .tanung q po pwed pO BA aq kasuhan..?anung kaso naman po. ??handa daw po ung caretaker ng bhay magtestgo na nagkkta po kmi. .ipina brgy nya n po aq.help po asap lang po plz. .

  2. heidi

    yung kuya ko po may asawa na dati kaso yung wife niya po nagka anak sa ibang lalaki 1year old na po baby nung wife niya sa ibang lalaki.. ngayun po yung kuya ko may gf na gusto niyang magpakasal dito sa new gf niya kaso kasal siya sa una asawa na may anak na sa ibang lalaki anu po pwede niya gawin? kasi mahal po ang unnalment . ilang taon po ba pwede makasal ang legaly separated?

    sana po mapansin niya po ang aking katanungan…
    maraming salamat po.

  3. Almira


    I would like to ask if I could file for concubinage against my husband if he lives in Seattle, Washington, USA. He is living with his mistress and they have two children which I just happen to know last year. Their eldest is 3 and a half and the youngest is about 2 yrs of age. We also have two kids; a teenager boy and a 6 yrs old girl.His mother knows about this affair. Can I file a case against his mother as well? I am presently here in the Philippines and I would like to know the procedure and how much it will cost me if I do this action. Please advise. Thanks.

  4. roselle

    Hi.. I just t oo ask for help..my uncle is working in Dubai he already had an affair with a pilipina there..and the girl was already pregnant ..my aunt always crying and don’t know what to do… She wants to put her husband un jail.. How can we make it..

  5. Margo

    Hi Atty

    this is my situation
    me and my partner are not legally married but we have 3 kids.my partner is married to his ex husband and later on were together for almost six years until i found out that my partner is having affair and having sexual intercourse to other man. what case i can file for both of them?
    Thank you so much..


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