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ADULTERY AND CONCUBINAGE
Definition:
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.
Discussion on these concepts:
Discussion on these concepts:
CONCUBINAGE
Art. 334. 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, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.
I. How committed/Concept:
The crime committed by a married man who:
The crime committed by a married man who:
1. Shall keep a mistress in the conjugal dwelling
a). the concubine must live in the conjugal dwelling even for brief periods of time, and not where she occasionally comes for a tryst or to spend the night therein
a). the concubine must live in the conjugal dwelling even for brief periods of time, and not where she occasionally comes for a tryst or to spend the night therein
2. Shall have sexual intercourse with her under scandalous circumstances
a). Proof of sex is not necessary but may be inferred
b). There be a public or open flaunting of the illicit relationship so that the public is scandalized, shocked, or the conduct give rise to general protest, or that the relationship sets a bad example.
c). Example: being seen with the woman in social and public gatherings; introducing or treating the woman as though she were the wife
d) Since public reaction is gauge of the scandal is there concubinage if:
b). There be a public or open flaunting of the illicit relationship so that the public is scandalized, shocked, or the conduct give rise to general protest, or that the relationship sets a bad example.
c). Example: being seen with the woman in social and public gatherings; introducing or treating the woman as though she were the wife
d) Since public reaction is gauge of the scandal is there concubinage if:
(i) openly going out is in places where the two are total strangers
(ii) relatives and acquaintances accept the fact of the relationship, as when the wife left the man who now is cared and loved by another woman?
(ii) relatives and acquaintances accept the fact of the relationship, as when the wife left the man who now is cared and loved by another woman?
3. Cohabit with her in any other place
a). To cohabit is to live together as husband and wife.
b) QUESTION: Is concubinage committed by the man in providing the woman her own house or apartment but does not live with her though he regularly visits her thereat, at which time they engage in sex?
b) QUESTION: Is concubinage committed by the man in providing the woman her own house or apartment but does not live with her though he regularly visits her thereat, at which time they engage in sex?
II. Unlike in adultery, the fact of criminal conversation or sexual intercourse with a woman does not give rise to concubinage. Further, each sexual act is not a separate offense because concubinage is treated as a continuing crime.
Note: In adultery the penalty is the same for both the woman and man (Prision correctional medium and maximum) but in concubinage the penalty for the man is lower by one degree ( prision correctional minimum and medium) while the concubine is given a separate penalty which is"destierro".
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.
III. The woman is liable if she knows him to be married (even if unhappily at that and even if her purpose is to provide comfort and companionship)
IV. The defenses available in adultery also apply such as consent and pardon.
ADULTERY
Art. 333. Who are guilty of adultery?
I. Concept: The crime committed by a 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”
A. The gist is actual sexual intercourse and not just mere romantic dating, or petting or kissing
B. There is no frustrated stage: it is either that the accused were able to engage in sex or not.
C. It is not a continuing crime because each separate sex act on a different occasion is a different and a separate crime.
D. This may be committed when a married woman marries a second time without the first having been judicially annulled or voided. Her liability is in addition to bigamy.
B. There is no frustrated stage: it is either that the accused were able to engage in sex or not.
C. It is not a continuing crime because each separate sex act on a different occasion is a different and a separate crime.
D. This may be committed when a married woman marries a second time without the first having been judicially annulled or voided. Her liability is in addition to bigamy.
II. The Judicial validity of the woman’s marriage is not material. It is enough that there was a marriage which has not yet been annulled or declared null and void.
III. Rationale:
A. The possibility of introducing spurious heirs
B. Violation of the marriage vows and the sanctity of the marriage based on the exclusivity of the sexual partner.
B. Violation of the marriage vows and the sanctity of the marriage based on the exclusivity of the sexual partner.
Defenses in Adultery
A. Pardon by the offended spouse if (1) given to both the guilty parties and (2) prior to the institution of the criminal action
B. Pardon may be express or implied, as by sleeping with the woman despite knowledge of the adultery (Pardon of the Act)
C. Consent given prior to the adultery, such as in mutual agreement to separate and to live with another partner
D. Recrimination or mutual infidelity is merely mitigating
E. The fact that the woman is legally separated from the husband is no defense.
B. Pardon may be express or implied, as by sleeping with the woman despite knowledge of the adultery (Pardon of the Act)
C. Consent given prior to the adultery, such as in mutual agreement to separate and to live with another partner
D. Recrimination or mutual infidelity is merely mitigating
E. The fact that the woman is legally separated from the husband is no defense.
IV. Principles in the Prosecution of Adultery
A. Direct evidence is not necessary as adultery may be implied from the circumstances of time, place and occasion
B. There may be a separate trial for the man and the woman
C. The man may be acquitted if he did not know the woman is married
D. If the man is married, he may also be liable for concubinage and the married woman man may also be charged as a concubine
B. There may be a separate trial for the man and the woman
C. The man may be acquitted if he did not know the woman is married
D. If the man is married, he may also be liable for concubinage and the married woman man may also be charged as a concubine
V. Special Extenuating Circumstance of Unjustified Abandonment
A. The penalty is at least one degree lower
B. The essence is that the woman was forced to commit adultery by reason of extreme necessity which refers to economic necessity and the need for survival, such as providing for the shelter and sustenance of her abandoned family.
B. The essence is that the woman was forced to commit adultery by reason of extreme necessity which refers to economic necessity and the need for survival, such as providing for the shelter and sustenance of her abandoned family.
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.
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.
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.
Adultery
1. What is Adultery?
Adultery is the carnal relationship between a married woman and a man who is not her husband.
“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 is the marriage be subsequently declared void.” (Article 333 of the Revised Penal Code)
“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 is the marriage be subsequently declared void.” (Article 333 of the Revised Penal Code)
2. What are the elements of adultery?
The elements of adultery are:
That the woman is married;
That she had sexual intercourse with a man not her husband;
That as regards the man with whom she has sexual intercourse, he must know her to be married.
That the woman is married;
That she had sexual intercourse with a man not her husband;
That as regards the man with whom she has sexual intercourse, he must know her to be married.
3. Who are liable for the crime of adultery?
The persons liable for the crime of adultery are:
The married woman who engages in sexual intercourse with a man not her husband;
The man who, aware of the marriage of the woman, has sexual intercourse with her.
The man who, aware of the marriage of the woman, has sexual intercourse with her.
4. Who may file the case of adultery against the offending spouse?
Only the offended spouse can file a case of adultery against the offending spouse.
5. Can anyone else file, on behalf of the offended spouse, a case for adultery against the offending parties?
No. The law specifically provides that in prosecutions for adultery and concubinage, the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned do not apply to adultery and concubinage.
“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. What is the penalty of adultery?
Persons convicted for the crime of adultery may face imprisonment from 2 years, 4 months and 1 day to 6 years. If the 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.
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)
7. 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.
8. What are the requirements of pardon?
The requirements of pardon are as follows:
The pardon must come before the institution of the criminal prosecution;
Both offenders must be pardoned.
Both offenders must be pardoned.
9. Must the pardon by the husband of his wife be explicit?
A pardon can also be implied. There is an implied pardon when the husband engages in an act of intercourse with the offending spouse subsequent to the adulterous conduct of his wife.
10. A husband slept with his wife even after he found out that she was cheating on him. Can he file a case of adultery against her?
No. It has been held in a long line of decisions of the various supreme courts of the different states of the U.S. that “a single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily sufficient to constitute condonation.”
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)
11. If a husband had pardoned his wife and her lover, can he later charge them for the crime of adultery?
No. If the husband has already pardoned his wife of her adulterous acts, he can no longer charge her with the crime of adultery.
However, if after the pardon, the wife and her lover continued 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. The adulterous acts of his wife and her lover which had occurred after the pardon are not covered by the pardon of the husband and as such, both the wife and the lover could be charged for new counts of adultery.
12. Can an offended husband be allowed to charge his offending wife only once with the crime of adultery?
No. A husband may charge his adulterous wife and her lover as many count of the crime of adultery as the number of known sexual transgressions by the guilty parties.
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)
13. 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. For the crime of adultery, proof of sexual intercourse by the guilty wife with a man not her husband, is enough to establish the crime of adultery. (Art. 333 of the Revised Penal Code.)
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. (People of the Philippines vs. Zapata)
14. I am a husband who discovered my wife sleeping with our neighbor. I already forgave my wife. However, I still want to charge her lover for I had trusted him. Can I file a complaint for adultery against the lover only?
No. You just cannot file a charge against the lover without including your guilty spouse. For the criminal charge of adultery to prosper, the offended spouse must institute the crime against the guilty parties, both the wife and her lover.
Furthermore, pardon by the offended spouse renders the filing of the charge against the guilty parties void. The criminal charge cannot prosper if the offended party has consented to the offense or pardoned the offenders for the transgression.
15. What if the unfaithful wife’s lover declares that he had no knowledge that his lover was a married woman, can he still be charged for the crime of adultery?
If the lover can prove that he had no knowledge of the true marital status of the wife and she had clearly presented herself as single, the lover may use that as a defense in case he be charged for the crime of adultery.
One of the elements of adultery is that the man having sexual relations with a married woman knew the whole time that she was married. If it cannot be proved that he had knowledge of her married status, he may be acquitted of the charge of adultery and the accused woman alone would be found guilty for the crime of adultery. (Del Prado v. De La Fuente, G.R. No. 9274, 14 September, 1914)
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. (United States v. Topiño, G.R. No. 11895, 20 December 1916)
16. So, even if a man declares he is innocent of the marital status of his lover, must the husband still include him him when charging his guilty spouse with the crime of adultery?
It is true that the husband cannot institute a prosecution for the crime of adultery without including therein both of the guilty parties, if they are both living, but the statute does not require that both must necessarily be tried together. The force of the article is spent when the husband institutes the prosecution against both or includes both in his complaint.
It is not for the husband to determine the question of the guilt or innocence of the paramour of the crime of adultery. That question must be left to the court. (U. S. vs. Asuncion, 22 Phil. Rep., 358.) When the complaint is filed by the offended husband against both of the guilty parties, the proceedings then pass into the hands of the prosecuting officer, who may move for a dismissal of the complaint as to the paramour, if he is satisfied that he cannot establish guilty knowledge on the part of the man of the fact that the woman was married, and such dismissal would not of itself require the court to acquit the woman. (United States v. Topiño, G.R. No. 11895, 20 December 1916)
17. If the lover, having been acquitted of the crime of adultery on the ground that he had no knowledge of the marital status of his lover, continues to have sexual relations with her, would charging him for adultery again result in double jeopardy?
No. The lover now has knowledge that the woman he was sleeping with is married, having been already apprised of it when he was charged with the first count for the crime of adultery. Despite knowing the consequences, he still risked the same by continuing his sexual relationship with the wife. Charging the lover with adultery the second time would not result in double jeopardy as he has knowledge of the marital status.
18. Is there a difference between adultery and Concubinage?
Yes, there are several differences between Adultery and Concubinage:
Adultery is committed by the wife while Concubinage is committed by the husband;
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;
The penalty for concubinage is lower than that of adultery. The penalty for the concubine is only destierro, while the penalty for the lover in adultery is the same as that of the guilty wife.
Can we file a case against the mistress?
[3] If a husband wants to file an adultery case against his wife, he must also charge the paramour. In the same way, a wife must file the case for concubinage against her husband and his mistress; she cannot charge the mistress alone. [4] Maximum penalty for adultery is imprisonment of six years.
