Family and Relationship

Not all marriages have happy endings. Adultery and concubinage in the Philippines have become the norm, as evidenced by several local television drama shows tackling marital infidelity as the favorite theme. If you are married and your spouse is cheating on you, when do you say enough? At what stage in your struggle will you avenge your honor and file a case against your erring spouse? If you are on the other side of this type of relationship, what will you do? In this article, let us discuss adultery and concubinage in the Philippines. Specifically, how it’s committed, the penalties if found guilty, how to start a case, and the possible defenses to avoid jail, among other topics. Let us also dig deep into your most frequently asked questions on this issue. What Is Adultery in the Philippines? As defined in Merriam-Webster2, adultery means voluntary sexual intercourse between a married person and someone other than that person’s current spouse or partner. By this definition, and in the Philippines, it seems common to tag all infidelity as adultery. However, as contemplated in Art. 333 of the Revised Penal Code of the Philippines, 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 is subsequently declared void. By this provision, there are only two persons penalized under the law: The married womanThe man who will have sexual intercourse with her So what is the crime if it is the husband who has a sexual relationship with another woman, not her wife? Generally, the sexual relationship of a man with another woman may not in itself be considered a crime in the Philippines. For it to be considered a crime, the husband must do any of the following: He keeps a mistress in the conjugal dwelling He has sexual intercourse, under scandalous circumstances, with another womanHe cohabits with another woman in any other place The above actions are considered concubinage penalized under Art. 334 of the Revised Penal Code. Adultery vs. Concubinage: What Is the Difference? The main difference between the two lies in who commits the crime. It is adultery if committed by the wife and her paramour or lover, and it is concubinage if committed by the husband and his mistress or concubine. In addition, Every single sexual act of the married woman is considered one crime. In concubinage, a single sexual act of the husband with another woman, which was not done under scandalous circumstances, may not even be considered a crime.The penalty for adultery is higher than for concubinage.The penalty for the lover in adultery is the same as for the married woman. Meanwhile, the penalty for the married man’s mistress or the concubine is only destierro. You may wonder about the unfairness of the law and why it places the wife at a disadvantage. By the provision of the Revised Penal Code, the penalty for the wife and his lover is harsher compared to the penalty for the husband and his concubine. Also, the burden of proving concubinage is far more difficult than adultery. The justification offered around the imbalance is to deter the married woman from committing the crime because of the possibility of the wife bearing a child and bringing it into the family as if it is the legitimate child of the husband without the latter’s knowledge. What Law Penalizes Adultery and Concubinage in the Philippines? The Revised Penal Code of the Philippines, particularly Art. 333, which penalizes adultery, and Art. 334, which penalizes concubinage. Both are considered Crimes against Chastity under Title 11 of the law. How Do You Prove Adultery and Concubinage in the Philippines? For the case of adultery to prosper, you must prove the following elements: The woman is marriedShe has actual sexual intercourse with another man that is not her husbandFor the man who had sexual intercourse with a married woman, he must know that she is married For concubinage, you must prove the following: 1. The husband is married 2. He must do any of the following acts: Keeping a mistress in the conjugal dwelling or the home of the husband and wife.Having sexual intercourse with his mistress under scandalous circumstances. The relationship, to be scandalous, will depend on the situation surrounding the case. Appearing together in public and performing acts in sight with the community that will give rise to criticism and protests among their neighbors, publicizing the immoral act, among others, are some examples considered a public scandal in one of the cases decided by the Supreme Court3 .Cohabiting with another woman in any other place. Cohabitation means living together as husband and wife for some time, and not just occasional or transient4. 3. As to the woman, she must know that the man is married. Who Can File for Adultery and Concubinage? Only the husband can file adultery, and only the wife can file concubinage. Also, they must include the other party (the lover, mistress, or concubine) in the complaint. Failure to do so will cause the dismissal of the case5 . Adultery and concubinage are considered private crimes, which means they cannot be prosecuted except upon the complaint filed by the aggrieved person. This requirement is imposed as a “consideration for the agreed party who might prefer to suffer in silence rather than go through the scandal of a public trial6 ”. What Is the Penalty for Adultery and Concubinage in the Philippines? Adultery is penalized with prision correccional in its medium to maximum period or for 2 years, 4 months, and 1 day to 4 years, 2 months, and 1 day. If the husband abandoned his wife without justification, the penalty next lower in degree shall be imposed. The married woman’s lover shall suffer the same penalty as her. On the other hand, concubinage is penalized with prision correccional in its minimum to medium period or from 6 months and 1 day to 2 years, 4 months, and 1 day. The concubine or the mistress is penalized with destierro7with the same duration as the husband. A person sentenced with destierro means he or she cannot enter a particular place or places designated in the sentence and its radius, which shall not be more than 250 and not less than 25 kilometers from the place designated. How To Defend Adultery and Concubinage Cases in the Philippines? The following scenario may absolve the erring spouse of the crime of adultery or concubinage. 1. If the innocent spouse consented to the commission of adultery or concubinage, and consent is given prior to the commission of the crime. In one case8, the wife was absolved of the crime when she showed that he and her husband entered into an agreement that they could live separately and marry another person. While the agreement is void under the law, it is considered competent evidence to explain the husband’s inaction after he knew that his wife was living with her lover and his acceptance of her conduct. In this case, the court considered it implied consent. 2. If the innocent spouse pardons, condones, or forgives the other for his or her infidelity. Pardon should be given before filing the criminal case, and the offended spouse should pardon both offenders (the spouse and his/her lover), not just his or her spouse9 .Express and implied pardons are allowed. An example of express pardon is writing an affidavit to state that the offended party is pardoning the erring spouse and her paramour for their adulterous act. On the other hand, an example of implied pardon is when the offended spouse continued to live with his wife even after the commission of the offense. There is also an implied pardon when the offended spouse has sexual intercourse with the erring spouse after knowledge of the infidelity. A single voluntary act of sexual intercourse after discovering the offense constitutes condonation. However, if the erring spouse commits the offense again after being pardoned, the original offense is revived10. 3. If you are able to prove that any of the elements of adultery and concubinage is not present. For example, you can prove that you have no knowledge that the person you are in a relationship with is married. Also, in another case 11, the court dismissed the complaint of the foreigner husband against her Filipina wife when it was proven that the divorce obtained abroad was already granted before he filed the case of adultery. How To Sue Your Spouse for Adultery or Concubinage: A Step-by-Step Guide 1. Gather and Prepare All Your Evidence The evidence could be documents, photographs, text messages, witnesses, and other relevant materials that can support your complaint. In addition, a complete narration in writing of all relevant facts will help. 2. Seek the Assistance of a Lawyer To Help You in Drafting Your Complaint – Affidavit It is advisable to get the services of a lawyer to help you in drafting the complaint to make sure all the elements of the crime are covered. If you qualify, you can also seek the assistance of the Public Attorney’s Office. 3. File the Complaint- Affidavit Before the Office of the Prosecutor With Jurisdiction Over the Place Where the Crime Was Committed The Complaint-Affidavit is filed before the Office of the Prosecutor, who has jurisdiction over the place where the crime was committed. 4. Attend the Preliminary Investigation Depending on the appreciation of your complaint, the prosecutor may conduct a Preliminary Investigation (PI) or file the case directly in court. If the prosecutor decides to conduct a PI, you may need to attend more or less two hearings. After that, the prosecutor will determine whether there is a probable cause and file the case in court against your erring spouse. 5. Attend and Testify in Court During the Full-Blown Trial If the prosecutor files the case in court, the trial will ensue. At some point during the trial, you and your witnesses will need to sit on the witness stand to testify. 6. Wait for the Judgment Depending on the presentation of your case and your evidence, the decision may or may not be favorable to you. If the decision is in your favor, the guilty party can always file a motion for reconsideration or appeal the case as a matter of right. Tips and Warnings 1. Forgiving your husband or wife after committing adultery or concubinage should be done before filing the complaint. In one case12 , the Supreme Court denied the petition of the wife to dismiss the case because the Affidavit of Desistance and the Compromise Agreement signed by her husband was made after the trial court had already rendered a decision finding her and her lover guilty beyond a reasonable doubt. 2. A conditional pardon will not absolve the erring spouse. In the same case mentioned in the previous item, the Supreme Court ruled that allowing the wife to continue living in the conjugal dwelling after her arrest so that she can take care of the children is not considered pardon as there is a condition attached to the pardon. 3. ‘In pari delicto’, a Latin term that means in equal fault (or both at fault), is not a valid defense in adultery and concubinage. You may still be held liable for adultery or concubinage even if your spouse is also committing adultery or concubinage, as the case may be. While it may be hypocritical to file a case against the other spouse when one is also committing the crime, the Supreme Court, in one case (Arroyo vs. Court of Appeals, G.R. No. 96602), ruled that the concept of ‘pari delicto’ is only applicable in the Civil Code (Art. 1411) or in contracts with illegal consideration and not found in the Revised Penal Code. 4. Committing adultery while being abandoned by your husband without justification is also not a valid defense in adultery. However, if found guilty, your penalty is lower. 5. In concubinage, evidence proving that the husband introduced his mistress as his wife or projecting that they are husband and wife in the community is crucial. Testimony of neighbors in the form of an affidavit will significantly support your case. 6. If you are abroad and you decide to file a case against your spouse, your presence in the Philippines is required. A Special Power of Attorney authorizing another person to act as a proxy is not allowed. Frequently Asked Questions 1. Is cheating in marriage a crime in the Philippines? Cheating that involves a sexual relationship of a woman with a man other than her husband is considered adultery in the Philippines. A man keeping a mistress in the conjugal dwelling or any other place or having a sexual relationship scandalously is considered concubinage. In a Supreme Court decision 13 the High Court ruled that marital infidelity of the husband is a form of psychological violence and may be punished under the Anti-Violence Against Women and the Children Act (VAWC). Note that the infidelity or act of the husband in having a relationship with another woman is not what is penalized under the VAWC law. What is punished is the psychological abuse or the emotional and psychological suffering of the wife brought about by the husband’s infidelity. The wife has to prove that her husband’s actions caused her emotional anguish and mental suffering. In this case, the wife suffered insomnia and asthma, among others, which the court considered falling under psychological abuse penalized under the VAWC law. 2. Can I file a case against my father for cheating on my mother? No, you cannot file a case against your father. Concubinage can only be filed by the offended spouse, in this case, your mother. 3. Is it legal in the Philippines to kill a spouse caught cheating? It is not legal to kill a spouse caught cheating. In the Philippines, a 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 will suffer the penalty of destierro14. Destierro means banishment or a prohibition to go to certain places, including its radius. Please note that for the husband or wife to avail the privilege of Art 247, that is, avoiding jail and suffering only the penalty of destierro, it is required that the spouse must surprise the husband or wife in the act of committing the sexual intercourse with another person. Thus, in one case15, the husband was found guilty of parricide when he killed his wife because he did not catch his wife in the very act of sexual intercourse. Seeing his wife rising up and seeing her alleged lover buttoning his pants does not necessarily follow that they have sexual intercourse. If indeed they had, he already caught them after the act. 4. Can I sue my husband’s mistress for a crime? Yes, on certain conditions: If your husband committed acts considered concubinage under Art. 334 of the Revised Penal CodeIf the mistress knows your husband is marriedYou cannot just single out the mistress in filing the case; you must also include your husband in the same complaint. 5. I am in a relationship with a married woman. Can I be in trouble? A relationship that involves sexual intercourse with the married woman falls within the definition of adultery penalized under Art. 333 of the Revised Penal Code. 6. Can I go to jail if I am in a relationship with a married man? No. If the wife files a case of concubinage with you and the husband, and the court finds both of you guilty, the penalty for you as the concubine is only a destierro. Destierro means banishment or a prohibition to go to certain places, including its radius. Please note further that, for your relationship to be considered a crime of concubinage, it must fall within the situation below; otherwise, there is no crime committed: He must keep you as a mistress in their conjugal dwelling You must have sexual intercourse with him under scandalous circumstancesYou must cohabit with him or live as husband and wife in any other place (other than the conjugal dwelling)You must know that he is married 7. Can text messages prove adultery? Text messages may be used as evidence to prove adultery. For a text message to be used as evidence, it must comply with the requirements under the Rules on Electronic Evidence (REE). Read this article to learn more about how text messages can be used as evidence in court. 8. Is cybersex or sexting considered adultery? No. What is penalized in adultery is the act of a sexual relationship. Text messaging that does not involve actual sexual intercourse is not covered. 9. How much does it cost to file a case of adultery or concubinage in the Philippines? Filing your complaint before the Office of the Prosecutor is free. The expenses will come from hiring a lawyer to assist you in the legal process and the fees you will incur in gathering your evidence. 10. Is adultery and concubinage bailable in the Philippines? Yes. It is bailable. For adultery, the bail is set to PHP 36,000, while for concubinage, the bail is set to PHP 30,000. No bail is required for the mistress or concubine16. 11. Can I file an annulment of marriage with my wife if she commits adultery? Adultery per se is not a ground for the nullity of marriage. For it to be ground, the totality of your wife’s infidelity must be within the definition of “psychological incapacity”. Read more about how marital infidelity could lead to a nullity of marriage. References