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.