ETHICS AND THE FAMILY RELATIONS

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?

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).

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.

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:

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.

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.

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