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