Bigamy

BIGAMOUS MARRIAGES
1. What is a bigamous marriage?
A bigamous marriage is the state of a man or a woman having two spouses, who are living, at the
same time.

Bigamy is the criminal offense of wilfully and knowingly contracting a second marriage (or going
through the form of a second marriage) while the first marriage, to the knowledge of the offender is
still subsisting and undissolved. (The Law Dictionary featuring Blacks Law Dictionary)

2. What are the elements of the crime of bigamy?

The elements of the crime of bigamy are:

1. That the offender has been legally married;

2. That the first 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. That he contracts a second or subsequent marriage; and
4. That the second or subsequent marriage has all the essential requisites for validity.
(People vs. Odtuhan, G.R. No. 191566, 17 July 2013)

3. What is the penalty imposed by the Philippine laws on the man who contracted a
bigamous marriage?
The penalty imposed upon persons who contracted a bigamous marriage is Prision Mayor or an
imprisonment lasting from 6 years and 1 day to 12 years.

The penalty of prision mayor shall be imposed upon any person who shall contract 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
proceedings. (Article 349 of the Revised Penal Code of the Philippines)

4. I recently found out that my husband had contracted a second marriage. As his legal
wife, can I charge him for the crime of bigamy?
Yes. Your husband had contracted a second marriage while his first marriage to you was still valid and
subsisting. Such an act of contracting a second marriage is an act of bigamy.

5. What is the status of the children resulting from bigamous marriages?

Children who were born of parents in a bigamous marriage are considered illegitimate.

6. If the first marriage was annulled, would the second bigamous marriage be
recognized?
If the first marriage was declared by the court as void ab initio, it would mean that there was no
marriage to begin with as such declaration of nullity retroacts to the date of the first marriage. In
other words, for all intents and purposes, reckoned from the date of the declaration of the first
marriage as void ab initio to the date of the celebration of the first marriage, the accused was under
the eyes of the law, never married. (Morigo vs. People, G.R. No. 145226, 06 February 2004)

In summary, it means that the first marriage which was annulled by the courts is considered as never
taken place and that the husband has been single all the while when he contracted a second marriage.
Such second marriage is considered as the valid legal marriage in the eyes of law and that the
husband had not committed the crime of bigamy.
7. If the first wife abandons her husband and could no longer be found, could our
bigamous marriage be recognized?
No, mere disappearance of the first and legal wife would not render the bigamous marriage legal. It
would still be considered illegal under the eyes of the law.

8. If the second wife of the bigamous marriage had no idea that her husband had a prior
and subsisting first marriage, can she use it as a defense against the crime of bigamy?
In bigamy, the second spouse could only be charge with the crime of bigamy if she had full knowledge
of the previous undissolved marriage of her husband. Thus, if the second wife had no idea that her
husband was previously married, she may claim such as a defense against the charge of bigamy.

9. I married my current husband last month. I was previously married to another man
10 years ago but I was informed that our marriage was void. Now it has come to my
attention I could be charged with bigamy, despite the first marriage being void.
Even if the Parties had believed that the first marriage was void, thus leading them to believe they
were free to marry other people, such is not true. It is the courts who have the capability to decide
whether or not a marriage is valid or void. Thus, even if the parties truly believed that their marriage
was void, without a judicial declaration of judgment from the courts, neither party are free to marry
other people.

Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must
be submitted to the judgment of competent courts and only when the nullity of the marriage is so
declared can it be held as void, and so long as there is no such declaration, the presumption is that
the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of
nullity of the first marriage assumes the risk of being prosecuted for bigamy.(Montaez v.
Cipriano, G.R. No. 181089, 22 October 2012)

10. My husband recently confessed that he had a prior existing marriage. As a result, I
want to dissolve our bigamous marriage without incurring any criminal liability. Can I do
so?
There is no need to dissolve your bigamous marriage with your husband as such marriage is already
void under the eyes of the law. You can claim the defense of non-involvement meaning that you
werent aware that he already was married to someone else and that his first marriage was still
subsisting.

11. My first marriage to my first was occurred 15 years ago. Recently, I married another
woman, forgetting to have my 1st marriage judicially declared as annulled. However, I
noticed that the solemnizing officer who officiated over my second marriage was in fact
fake. Can I now claim that my second marriage was void as a defense against any future
charge of bigamy against me?
If your second marriage was considered by the courts as void, then it would lack one of the essential
elements of bigamy, that the second marriage is valid. Thus, no second marriage actually took place.
In short, you cannot be charged with bigamy as you are still considered married to the first wife and
no subsequent marriage ever occurred.

12. Until when can I charge my husband of bigamy?

The crime of bigamy has a prescription period of fifteen (15) years. This means that the offended
party has 15 years within which she could charge her guilty husband of the crime of bigamy.

13. When will the 15 year prescriptive period for the crime of bigamy start?
The fifteen-year prescriptive period commences to run from the day on which the crime was
discovered by the offended party, the authorities or their agents.
This means that the counting of the 15 year prescriptive period would start from the very day that it
came to your knowledge of the bigamous marriage of your husband.

14. What is the penalty for bigamy?

Bigamy carries with it the afflictive penalty of prision mayor, having imprisonment duration of six (6)
years and one (1) day to twelve (12) years.

Concubinage
CONCUBINAGE

1. What is Concubinage?
"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 xxx." (Article 334 of the Revised
Penal Code)
2. Is there a difference between Adultery and Concubinage?
Yes, there are several differences between Adultery and Concubinage:
a. Adultery is committed by the wife while Concubinage is committed by the husband;
b. Proof of sexual intercourse is enough to prove adultery while in concubinage, the offended party
must prove that the sexual intercourse was under scandalous circumstances or that her husband kept
a mistress in the conjugal dwelling or had been cohabiting with her in any other place;
c. The penalty for concubinage is lower than that of adultery. The penalty for the concubine is only
destierro, while the penalty for the man in adultery is the same as that of the guilty wife.
3. In June 1990, I married A my husband. A year later, I found a job in Paris, France. As we
needed the money, I accepted the job offer. My husband A promised that he would look for
a job in France so we could be together. But years passed and he continued to stay in the
Philippines. Then in 2000, I decided to surprise my husband by travelling to the Philippines
unannounced. When I got home, I saw him and my best friend B inside our conjugal house
having sex. Can I file a case for Concubinage against my husband and his mistress?
Yes, you may file a case against your husband and his mistress for Concubinage since all the elements
of Concubinage are present. The elements of concubinage are:

a.That the man must be married;

b. That he committed any of the following acts:
1. Keeping a mistress in the conjugal dwelling
2. Having sexual intercourse under scandalous circumstances with a woman who is not his wife
3. Cohabiting with her in any other place
c. That the woman knows him to be married.

4. I am an OFW working in Florida, USA. In 2010, I went home to our house in Cavite to find
our house empty. Worried about my husband Mr. A, I asked my close friend and neighbor as
to his whereabouts. She told me that my husband now lives a couple of towns away. When
I got to the address, I asked around and learned that my husband is now masquerading B
as his new wife. I saw that they have their own house and child and their neighbors refer to
them as Mr. and Mrs. A. Could I file a case for Concubinage against A and B because they
are cohabiting as husband and wife in one house?

Yes. To cohabit means that the parties live together as husband and wife in the same house. It entails
a continuous or continuing period as if the parties are actually married.

"Hence, the meaning of the word cohabit here must relate and be confined to the subject matter of
the law itself. When used in that sense, it should be construed to mean "to dwell or live together as
husband and wife; to live together as husband and wife although not legally married; to live together
in the same house, claiming to be married; to live together at bed and board." (People of the
Philippines vs. Pedro Pitoc and Marciana Del Basco, G.R. No. 18513, 18 September 1922)
"To "cohabit," according to the sense in which the word is used in a penal statute, means dwelling
together as husband and wife, or in sexual intercourse, and comprises a continue period of time.
Hence the offense is not the single act of adultery; it is cohabiting in a state of adultery; and it may be
a week, a month, a year, or longer, but still it is one offense only."(People of the Philippines vs.
Pitoc, G.R. No. 18513, 18 September 1992)

5. I caught my husband and the wife of our Pastor having an affair. From the emails that I
saw, they have met several times at a luxurious resort for several months now. Are they
guilty of Concubinage for having sexual relations under scandalous circumstances?
Yes, your husband and his mistress may be held liable for Concubinage. To be guilty of concubinage,
one of the acts committed by the married man is to have sexual intercourse with a woman not his
spouse under scandalous circumstances. This consists of any reprehensible word or deed that offends
public conscience, redounds to the detriment of the feelings of honest persons, and gives occasion to
the neighbor's spiritual damage or ruin. This element shall be determined on a case to case basis and
shall be proved by clear and convincing evidence.

A disbarment case was filed against a married lawyer who cohabited with a married woman, not his
wife. The Supreme Court held in this case, "Whether a lawyer's sexual congress with a woman not his
wife or without the benefit of marriage should be characterized as grossly immoral conduct depends
on the surrounding circumstances. The case at bar involves a relationship between a married lawyer
and a married woman who is not his wife. It is immaterial whether the affair was carried out
discreetly." (Joselano Guevarra vs. Atty. Jose Emmanuel Eala, A.C. No. 7136, 01 August
2007)

Another administrative case was filed against a court stenographer who was involved with a married
man who was then physically separated with his spouse. However, the court stenographer disclaimed
having knowledge that her lover was married during the course of their relationship which resulted to
the birth of 3 children. She further said that they did not live together but her lover would visit them
from time to time. The Supreme Court held, "in the absence of clear and convincing evidence, it would
be insensitive to condemn the respondent simply being an unmarried mother of three. There has been
no showing that she has lived her life in a scandalous and disgraceful manner which, by any means,
has affected her standing in the community." (Julie Ann C. Dela Cueva vs. Selima B. Omaga, A.M.
No. P-08-2590, 05 July 2010)
6. How do I prove that my spouse committed concubinage?
By way of analogy, the rules applicable to adultery may also be applied to prosecutions for
concubinage. You need not produce physical proof of your husband's sexual infidelity or cohabitation.
It is only necessary that the evidence you adduce would establish the commission of the offense
beyond reasonable doubt.

"Proof of the commission of the crime of adultery, like proof of the commission of most other crimes,
may safely be rested on circumstantial evidence when that evidence is such that it leaves no room for
reasonable doubt of the guilt of the accused, and, indeed, contrary to the contention of counsel for
appellants, convictions for this crime have frequently been had without direct evidence as to the
specific acts constituting the offense xxx" (The United States vs. Fabiana Legaspi and Paulino
Pulongbaret, G.R. No. L-5110, 19 August 1909)
7. Can my sister file a case for Concubinage against my husband since I am abroad most of
the time?

No. Only the offended spouse can file a case of concubinage against the offending spouse.

"The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by
the offended spouse. xxx" (Rule 110, Section 5(2) of the Revised Rules of Criminal Procedure)
No one else may file such complaint in behalf of the offended spouse; not even the State. The
criminal complaint will not prosper should it be filed by a third person. Similar to adultery,
concubinage is regarded as a private crime, meaning it cannot be prosecuted except at the instance of
the offended spouse.

"It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules
of Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated
victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of
her parents, grandparents or guardian, such amendment did not include the crimes of adultery and
concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate
the action therefor." (Pilapil v. Ibay-Somera, G.R. No. 80116, 30 June, 1989)
8. Can a married man who marries a second time be found guilty of concubinage?
Yes, a married man whose marriage has not been dissolved may be held liable for concubinage in
addition to his criminal liability for bigamy
.
9. After I caught my husband and my best friend having sex at a motel in Pasig City, I
decided to file a case against them for Concubinage. While the case is pending before the
court, I also filed a Petition for Declaration of Nullity of Marriage. Would a Decision
dissolving my marriage prevent me from pursuing the Concubinage case?

No. As long as you were still married during the time of filing of the complaint for Concubinage, the
subsequent dissolution of your marriage will not affect the proceedings. The marital status must be
present at the time of filing the complaint.
It is a different story if your marriage was already dissolved before the filing of the Complaint for
Concubinage. In this situation, the grant of nullity of marriage between the parties removes the right
given to the offended spouse to file an action for concubinage. Once the marriage between the parties
is severed, the offended spouse may no longer file a complaint for concubinage even if the act was
done during the subsistence of the marriage.

10. My husband and I have been legally separated for 10 years when I caught him having
an affair with our nanny. Could he use our status as a defense in the complaint for
Concubinage?

No, your husband cannot interpose legal separation as a defense. In legal separation, the spouses
are merely separated bed and board but the marriage of the parties is still in force. Therefore, if the
husband cohabits with another woman or has sexual intercourse with another under scandalous
circumstances even while legally separated, he may still be held liable for such crime.
11. Can I just file a case for Concubinage against the mistress of my husband?

No. The persons liable for the crime of concubinage are:

a. The married man who cohabits or engages in sexual intercourse with another woman not his wife;
and

b. The woman who, knowing that the man is married cohabits with the offending spouse or engages in
sexual intercourse with him.

12. To whom is a criminal complaint for concubinage filed against?

A criminal complaint for concubinage must be filed against both guilty parties --- the offending
spouse and the woman with whom he cohabits or with whom he has sexual intercourse. The complaint
cannot be filed against only one of them.
"The offended party cannot institute criminal prosecution without including the guilty parties, if both
are alive, nor, in any case, if the offended party has consented to the offense or pardoned the
offenders." (Rule 110, Section 5(2), Revised Rules of Criminal Procedure)
If a criminal complaint was filed without including one of the guilty parties, the case shall be
dismissed for lack of conformity with the provisions of the law.

13. What is the penalty of concubinage?

"xxx shall be punished by prision correccional in its minimum and medium periods. The concubine
shall suffer the penalty of destierro." (Art. 334 of the Revised Penal Code)
A man convicted of the crime of concubinage may face imprisonment of 2 years, 4 months and 1
day to 6 years. If concubinage was committed because of the abandonment by the offended spouse,
the guilty spouse faces imprisonment of 6 months and 1 day to 2 years and 4 months.
 If found guilty of the crime of concubinage, the concubine shall suffer a different penalty of
destierro. "Any person sentenced to destierro shall not be permitted to enter the place or places
designated in the sentence, nor within the radius therein specified, which shall be not more than 250
and not less than 25 kilometers from the place designated." (Article 87, Revised Penal Code)
14. What if I forgave my husband and gave him a second chance. Could I still pursue the
Concubinage against the mistress?

No. You will be barred from instituting a criminal complaint against the guilty parties when you
pardon or consent to their infidelity.
The pardon absolves your husband of the crime of concubinage and you can no longer charge him.
Since the crime of concubinage cannot be instituted without including both guilty parties, you cannot
continue to institute the action against the mistress only. If you pardon one party, then you pardon
them both.

15. After I caught my husband with another woman, I continued to live with him inside our
house. A few months later, during our anniversary, my husband and I had sex again. Does
this constitute pardon on my part, barring me from filing a complaint for Concubinage?

Yes. The requirements of pardon are as follows:

a. The pardon must come before the institution of the criminal prosecution;

b. Both offenders must be pardoned.

"In this jurisdiction pardon for adultery and concubinage must come before the institution of the
criminal action and both offenders must be pardoned by the offended party if said pardon is to be
effective. The pardon can be express or implied. Thus, 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 adulterous
act this is a case of express pardon. There is implied pardon when the offended party continued to live
with his spouse even after the commission of the offense. However such consent or pardon cannot be
implied when the offended party allows his wife to continue living in the conjugal home after her
arrest only in order to take care of their children." (Ligtas vs. Court of Appeals, G.R. No. L-47498,
07 May 1987

16. If the offended wife had pardoned her husband and his lover and after such pardon the
guilty parties continue their cohabitation, can the offended spouse charge them for the
crime of concubinage?

Yes. If after the pardon, the husband and his lover continue their sexual relationship, the wife can
charge them both for the crime of concubinage as her pardon only covers the previous transgressions
of her husband and his paramour.

17. When is there implied pardon from the offended spouse?

Implied pardon by the offended spouse can be determined by her subsequent acts after the
commission of the offense.
"In this jurisdiction pardon for adultery and concubinage must come before the institution of the
criminal action and both offenders must be pardoned by the offended party if said pardon is to be
effective. xxx There is implied pardon when the offended party continued to live with his spouse even
after the commission of the offense. However such consent or pardon cannot be implied when the
offended party allows his wife to continue living in the conjugal home after her arrest only in order to
take care of their children."

(Petronilo Ligtas vs. Court of Appeals and People of the Philippines, G.R. No. L-47498, 07
May 1987)
18. After I caught my husband and his mistress having sex in a motel, the mistress lashed
out at my husband. She screamed that she thought that my husband was still a bachelor.
Later, I learned that my husband made her believe that he was unmarried and she was his
girlfriend. Could the mistress be held liable for Concubinage?
 No. It is necessary that the mistress knows that the man is married to make her liable for
Concubinage. However, if such knowledge cannot be proven, she may be absolved while the guilty
husband shall be held liable alone.

"The legal effect of such ignorance deserves due consideration, if only for intellectual clarity. The act
of having sexual relations with a married person, or of married persons having sexual relations outside
their marriage is considered disgraceful and immoral conduct because such manifests deliberate
disregard by the actor of the marital vows protected by the Constitution and our laws. xxx However,
the malevolent intent that normally characterizes the act is not present when the employee is
unaware that his/her sexual partner is actually married. This lack of awareness may extenuate the
cause for the penalty, as it did in the aforementioned Ui case."(Julie Ann C. Dela Cueva vs. Selima
B. Omaga, A.M. No. P-08-2590, 05 July 2010)

19. I caught my husband having sex with a stranger. I learned later on that the woman was
his co-worker. After I filed a criminal case for Concubinage against both of them, the
woman was acquitted as supposedly, she did not have an idea that my husband was
married to me. After the acquittal of this woman, I saw her visit my husbande who was out
on bail. I saw them have sex again at my husband's apartment. Could I still charge this
woman for Concubinage?

Yes, you may charge this woman for Concubinage even after hse was acquitted during the first
instance. Double jeopardy would not attach in this case because this is a different incident of
Concubinage. By the fact that a criminal complaint for Concubinage was charged against her, she now
has knowledge that her lover is in fact married. Despite knowing the consequences, she still risked the
same by continuing her relationship with her lover. Charging her again of Concubinage would not
result in double jeopardy as criminal intent is now present.

20. What if I killed or injured my spouse and/or his paramour when I caught him in the act
of committing sexual intercourse with another person?

As the offended spouse in this scenario, you may be exempt from punishment as provided by Article
247 of the Revised Penal Code. However, to be able to benefit from this defense, you need to prove
that you actually caught your spouse and his paramour in the act of having sex, or in flagrante delicto.
Article 247 absolves or limits the liability of the accused/offended spouse depending on the damage or
injury inflicted upon the victim/s.

"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 of immediately
thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If
he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.
These rules shall be applicable, under the same circumstances, to parents with respect to their
daughters under eighteen years of age, and their seducer, while the daughters are living with their
parents. Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall
otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of
this article." (Art. 247, Revised Penal Code)

21. What happens if my husband commits Concubinage with another woman who is also
married?

If the mistress is married, she may also be held liable for Adultery and your husband would also be
charged as her paramour.

Adultery
1. What is Adultery?
"Adultery is committed by any married woman who shall have sexual intercourse with a man not her
husband and by the man, who has carnal knowledge of her knowing her to be married, even if the
marriage be subsequently declared void." (Article 333 of the Revised Penal Code)

2. Is there a difference between Adultery and Concubinage?

Yes, there are several differences between Adultery and Concubinage:
a.Adultery is committed by the wife while Concubinage is committed by the husband;
b.Proof of sexual intercourse is enough to prove adultery while in concubinage, the offended party
must prove that the sexual intercourse was under scandalous circumstances or that her husband kept
a mistress in the conjugal dwelling or had been cohabiting with her in any other place;
c.The penalty for concubinage is lower than that of adultery. The penalty for the concubine is only
destierro, while the penalty for the man in adultery is the same as that of the guilty wife.

3. I caught my wife chatting with another man on Facebook. Is my wife guilty of Adultery?
Based on the above definition, your wife is not guilty of the crime of Adultery. In order for a case of
Adultery to prosper, the following elements of the crime of Adultery must be present:
a.That the woman is married;
b.That she had sexual intercourse with a man not her husband;
c.That as regards the man with whom she has sexual intercourse, he must know her to be married.

4. My mother caught my wife having sex with our gardener. After my mother told me about
it, she decided to file the case against my wife for Adultery. Could my mother file the case
for Adultery against my wife?

No. Only the offended spouse can file a case of adultery against the offending spouse. "The crimes of
adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended
spouse. xxx" (Rule 110, Section 5(2) of the Revised Rules of Criminal Procedure)
Further, the status of the marriage is material to the filing of the complaint. The status of the parties'
marriage is determined at the time of filing of the complaint. Since the offended spouse is given the
exclusive power to initiate the action, he must have the necessary status and capacity to do so.
Therefore, their marriage must be subsisting at the time of filing.

"We are convinced that in cases of such nature, the status of the complainant vis--vis the accused
must be determined as of the time the complaint was filed. Thus, the person who initiates the adultery
case must be an offended spouse, and by this is meant that he is still married to the accused spouse,
at the time of filing of the complaint." (Pilapil vs. Iba-Somera, G.R. No. 80116, 30 June 1989)

5. I am an OFW in Saudi Arabia and I discovered that my wife is having sexual relations
with our pool boy. Even my siblings attested to this. Can my sister file the Complaint for
Adultery in my behalf?

No. As stated in Rule 110 Section 5(2), the law is very specific in stating that only the offended spouse
may file the complaint against the offending parties. No one else may file such complaint in behalf of
the offended spouse; not even the State. The criminal complaint will not prosper should it be filed by a
third person.

"It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules of
Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated victim
in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her
parents, grandparents or guardian, such amendment did not include the crimes of adultery and
concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate
the action therefor." (Pilapil v. Ibay-Somera, G.R. No. 80116, 30 June, 1989)

6. I married my first husband A back in June 1988. After 10 years of marriage, A left me in
1998. Since I have not seen A for 10 years, I tried to move on with my life. Sometime in
2008, I met B, a kind and generous man. We married in 2010. Then 5 years later, A came to
my house and accused me of Adultery. Did I commit this crime?
Yes, you may be held liable for the crime of Adultery. Considering that you have not secured the
dissolution of your marriage to A when you married B, then A may sue you for Adultery, in addition to
Bigamy.

7. I married my first husband A back in June 1988. After 10 years of marriage, A left me in
1998. Since I have not seen A for 10 years, I tried to move on with my life. I filed a Petition
for Declaration of Nullity of Marriage and I received a Decision in 2010. Sometime in 2012, I
met B, a kind and generous man. We married in 2015. Then in 2017, A came to my house
and accused me of Adultery. Did I commit this crime?

No. Based on the definition above, the woman must be married at the time she had sexual relations
with another man who is not her husband. The marital status must be present at the time of filing the
complaint. Since it is only the legal spouse who is afforded the right to file the complaint, the grant of
nullity of marriage between the parties removes the right given to the offended spouse to file an
action for adultery. Once the marriage between the parties is severed, the offended spouse may no
longer file a complaint for adultery even if the act was done during the subsistence of the marriage.

8. I married my first husband A back in June 1988. After 10 years of marriage, A left me in
1998. Since I have not seen A for 10 years, I tried to move on with my life. I filed for Legal
Separation and I received a Decision in 2010. Sometime in 2012, I met B, a kind and
generous man. We married in 2015. Then in 2017, A came to my house and accused me of
Adultery. Did I commit this crime?

Yes. You may still be held liable for Adultery since Legal Separation does not dissolve your marital
union with A. You cannot interpose Legal Separation as a defense. In Legal Separation, the spouses
are merely separated bed and board but the marriage of the parties is still in force. Therefore, any of
the spouses who commit adultery, even while legally separated, may be held liable for such crime.

9. I caught my wife having sexual relations with my best friend. After my wife said sorry, I
accepted her apology. But I still want to file a case against my best friend who betrayed my
trust. Will the case for Adultery prosper in court?

No. The criminal Complaint for Adultery must be filed against both the wife and the best friend. The
persons liable for the crime of adultery are:
a.The married woman who engages in sexual intercourse with a man not her husband;
b.The man who, knowing that the woman is married, has sexual intercourse with her.
A criminal complaint for adultery must be filed against both guilty parties --- the offending spouse and
the man with whom she has sexual intercourse. The complaint cannot be filed against only one of
them.

"The offended party cannot institute criminal prosecution without including the guilty parties, if both
are alive, nor, in any case, if the offended party has consented to the offense or pardoned the
offenders." (Rule 110, Section 5(2), Revised Rules of Criminal Procedure)
If a criminal complaint was filed without including one of the guilty parties, the case shall be dismissed
for lack of conformity with the provisions of the law.

10. What is the penalty of adultery?

"Adultery shall be punished by prision correccional in its medium and maximum periods. If the person
guilty of adultery committed this offense while being abandoned without justification by the offended
spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be
imposed." (Art. 333 of the Revised Penal Code)
Persons convicted of the crime of adultery may face imprisonment from 2 years, 4 months and 1 day
to 6 years. If the crime of adultery was committed because of the abandonment by the offended
spouse, the offending parties face imprisonment from 6 months and 1 day to 2 years and 4 months.

11. I caught my wife having sex with our neighbor. When I confronted them, my wife cried
and asked for forgiveness and another chance. I thought about it and I told her I forgive
her. We lived together again under one roof. But I changed my mind as I learned I could
not go on living with her anymore. Could I still file a case against my wife for Adultery?
No. The offended spouse shall be barred from instituting a criminal complaint against the guilty parties
when he pardons or consents to their infidelity.
However, if after the pardon, the wife and her lover continue their sexual relationship, the husband
can charge them both for the crime of adultery as his pardon only covers the previous transgressions
of his wife and her paramour.

12. What happens if the husband pardons his wife?

The pardon absolves the wife of the crime of adultery and the husband can no longer charge her.

13. What are the requirements of pardon?

The requirements of pardon are as follows:

a.The pardon must come before the institution of the criminal prosecution;
b.Both offenders must be pardoned.
"In this jurisdiction pardon for adultery and concubinage must come before the institution of the
criminal action and both offenders must be pardoned by the offended party if said pardon is to be
effective. The pardon can be express or implied. Thus, 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 adulterous
act this is a case of express pardon. There is implied pardon when the offended party continued to live
with his spouse even after the commission of the offense. However such consent or pardon cannot be
implied when the offended party allows his wife to continue living in the conjugal home after her
arrest only in order to take care of their children." (Ligtas vs. Court of Appeals, G.R. No. L-47498,
07 May 1987)

14. My wife and I have signed a Memorandum of Agreement that we consent to have an
"open marriage" where we are allowed to have sex with other people. After 5 years of
marriage, I learned that my wife is having sex with my best friend. I decided to file a
Complaint for Adultery against her and my best friend. Is our Memorandum of Agreement a
bar to filing a case of Adultery?
No. Any agreement made between husband and wife consenting to a future adulterous act by one
spouse is considered void. So you may still file a complaint against your wife and her lover.

Art. 333 of the Revised Penal Code does not intend to imply that by the word "consent" meant that
the offended spouse previously agreed that his spouse engage in an extra marital affair. Consent is
manifested by the offended spouse after the commission of the offense.

The expression "if he shall have consented" in Article 344 of the Revised Penal code, which bars
the "offended" husband from instituting a prosecution, has no reference to any consent or agreement
prior to the commission of the offense but related to an express or implied acquiescence subsequent
to the offense. This consent or acquiescence need not be express but may be inferred from the
conduct or the long continued inaction of the husband after learning of the offense. The husband who
is truly "offended", within the meaning of the statute, will not sit passively by and allow his name and
the honor of his family to be flagrantly sullied by the notorious adultery of his wife. xxx His consent to
the offense before it was committed was void but his tolerance of and acquiescence in the offense
after it was committed demonstrate that it is a hypocritical pretense for him now to appear in court as
the "offended party" and bar his right to prosecute his wife." (People vs. Guinucud and Tagayun, G.R.
No. L-38672, 27 October 1933)

15. I caught my wife cheating on me with our neighbor. I did not confront her right away.
One night we celebrated our anniversary and I temporarily let go of my anger. I ended up
sleeping again with my wife. Can I still file a case against her and our neighbor?
No. Sleeping with your wife after having knowledge of her adulterous acts may constitute as
condonation or forgiveness for her offense.

"Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as
stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission,
by a husband or wife of a matrimonial offense which the latter has committed".(Bugayong v. Ginez,
G.R. No. L-10033, 28 December 1956)
16. I caught my wife having sex with our pool boy. When I confronted her about it, she
asked for forgiveness which I gave. But then a year later, I caught her again doing the deed
with our neighbor. Could I still file a case for Adultery against her?
Yes. While you were presented from filing a case for Adultery against your wife after you have
forgiven her, the second instance of Adultery is not covered by your forgiveness. Thus, you may still
file a case against your wife for the second incident of Adultery.

"Adultery is a crime of result and not of tendency. It is an instantaneous crime which is consummated
and exhausted or completed at the moment of the carnal union. Therefore, each sexual intercourse
constitutes a crime of adultery. There is no constitutional or legal provision which bars the filing of as
many complaints for adultery as there were adulterous acts committed, each constituting one
crime." (People v. Zapata, G.R. No. L-3047, 16 May, 1951)

17. I am a husband who discovered that my wife had been having several affairs
throughout the course of our marriage. One affair in particular had her checking in into a
hotel twice a month without fail for the past six months. Can I charge her with the crime of
adultery?
Yes, proof of sexual intercourse by the guilty wife with a man not her husband, is enough to establish
the crime of adultery.

Furthermore, each sexual intercourse counts as one consummated act of adultery. Thus, your wife
and her lover could be charged for several counts of adultery. (see People of the Philippines vs.
Zapata)

18. I caught my wife and my best friend having sex inside our bedroom. After I confronted
them, I threw them both out of the house. A few weeks later, I filed a complaint against my
wife and my best friend for the crime of Adultery. During the Preliminary Investigation, my
best friend claimed that he did not know that my wife was married to me which is
absolutely false because he was actually my best man at our wedding. Can he still be
charged with Adultery?

Yes. It is necessary that the unfaithful wife's lover know that the latter is married to obtain his
conviction. However, if such knowledge cannot be proven, he may be absolved while the guilty wife
shall be held liable alone.

"Must there also be in every case a joint criminal intent? We think not. While the criminal intent may
exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of
the other party. One may be guilty of the criminal intent, the other innocent, and yet the joint physical
act necessary to constitute adultery may be complete. Thus, if one of the parties was, at the time of
committing the physical act, insane, certainly such party has committed no crime; but it certainly
cannot be contented that the other party who was sane, committed no crime. So, if the man had no
knowledge that the woman was married, he would be innocent, in so far as the crime of adultery is
concerned and the woman guilty. The one would have to be acquitted and the other found guilty,
although they were tried together. Or in other words, the act of sexual intercourse with a married or
an unmarried man, other than her husband, is adultery in the woman without regard to the guilt of
the man." (The United States vs. Teodora Topio and Gabriel Guzman, G.R. No. 11895, 20
September 1916)

19. I caught my wife having sex with a stranger. I learned later on that the man was her
co-worker. After I filed a criminal case for Adultery against both of them, the man was
acquitted as supposedly, he did not have an idea that my wife was married to me. After the
acquittal of this man, I saw him visit my wife who was out on bail. I saw them have sex
again at my wife's apartment. Could I still charge this man for Adultery?
Yes, you may charge this man for Adultery even after he was acquitted during the first instance. Duble
jeopardy would not attach in this case because this is a different incident of Adultery. By the fact that
a criminal complaint for adultery was charged against him, he now has knowledge that his lover is in
fact married. Despite knowing the consequences, he still risked the same by continuing his
relationship with his lover. Charging him again of adultery would not result in double jeopardy as
criminal intent is now present.

20. I caught my wife having sex with a stranger. Out of sheer anger and devastation of her
betrayal, I punched the man and slapped my wife. The man is threatening to file a case
against me for physical injuries. What would happen to me?
As the offended spouse in this scenario, you may be exempt from punishment as provided by Article
247 of the Revised Penal Code. However, to be able to benefit from this defense, you need to prove
that you actually caught your spouse and her paramour in the act of having sex, or in flagrante
delicto. Article 247 absolves or limits the liability of the accused/offended spouse depending on the
damage or injury inflicted upon the victim/s.

"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 of immediately
thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If
he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.
These rules shall be applicable, under the same circumstances, to parents with respect to their
daughters under eighteen years of age, and their seducer, while the daughters are living with their
parents. Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall
otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of
this article." (Art. 247, Revised Penal Code)

21. What happens if the wife commits adultery with another man who is also married?
If the man is married, he may also be held liable for concubinage and the married woman would also
be charged as his concubine.