All About Philippine Marital Infidelity Law

Philippine Marital Infidelity Law

A brief discussion on Infidelity, Concubinage, Adultery and Bigamy

Published by Atty. Fred November 23rd, 2009 in Annulment and Legal Separation, Criminal Law and Family and Property Law. 8   Comments

We previously noted that infidelity is not, by itself, a ground for annulment, although it could be a basis for legal separation or filing a case for adultery/concubinage. As to custody, the Supreme Court already ruled that sexual infidelity, by itself, is not sufficient to grant custody over a child. Let’s continue the discussion on these concepts:

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?

1. 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).

2. 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.

3. 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:

1. 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.

2. 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.

3. 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

Marital Infidelity Bill SituationerWednesday, 18 March 2009 15:41

National Situation

Marital infidelity is a major marital or family stressor among Filipino married couples. Various studies show that married men engage in extra marital sex more than married women. The proportion of married men engaging in extra marital sex was found to be 36% compared to 2% of married women. Marital infidelity in the Philippines is thus, a male phenomenon. (Gonzales 2003) 0 While more men admit to having engaged in extramarital relations, 85% of them said that their marriage was not in any danger of breaking up. A study of the cases petitioning for nullity of marriage by Dayan and Samonte (1998, cited in Gonzales 2003) shows that adultery for males seemed more blatant, almost natural, where males courted and sought out their female partners. Female petitioners, however, tended to feel more guilty, keeping their affairs a secret.

Majority of Filipinos disapprove of extramarital relations. Guerrero (1995, cited in Gonzales 2003) noted that a large majority of the Filipinos (88% of the 1,200 respondents nationwide) disapprove of extramarital relations. Another survey showed that 96% of 1,200 respondents nationwide disapprove of extramarital relations (Daylo-Laylo and Montelibano 2000; de Vera 1976 cited in Gonzales 2003). Six out of ten youths (N:900 nationwide) also disapprove of marital infidelity (McCann 2000, cited in Gonzales 2003).

92% percent of 1,200 women respondents nationwide consider maintaining a mistress, being a mistress, being a prostitute or using a prostitute, or cheating on a spouse, as wrong (McCann 1996, cited in Gonzales 2003).

Legislative Herstory

Existing law, specifically Article 333 of the Revised Penal Code penalizes a married woman who had sexual intercourse with a man not

her husband, for the crime of adultery. This carries the penalty of imprisonment for two to six years.

Article 334 of the Revised Penal Code penalizes a married man who keeps a mistress or has had sexual intercourse with her or any woman not his wife, under scandalous circumstances, for the crime of concubinage. This carries the penalty of imprisonment for six months to four years.

In the 13th Congress, four bills revising Articles 333 and 334 of the Revised Penal Code were filed in the House of Representatives. A Technical Working Group was formed to consolidate the four bills. A substitute bill was approved near the close of the 13th Congress.

For the 14th Congress, Rep. Emmanuel Joel Vilanueva filed HB 999 while Reps. Liza Largoza-Maza and Luzviminda C. Ilagan filed HB 1820, both amending Articles 333 and 334 of the Revised Penal Code.

In the Senate, Sen. Edgardo Angara filed SB 897 for the 14" Congress, amending Articles 333 and334 of the Revised Penal Code.

Salient Features

The Philippines is duty-bound to implement the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), specifically the UN CEDAW Committee's Concluding Comments, which among others, urges the government to review existing policies with the aim of removing discriminatory provisions in national legislation. The NCRFW advocates for the revision of Articles 333 and 334 of the Revised Penal Code. The revised legislation shall:

Define those guilty of marital infidelity as any married person who shall have carnal knowledge of a person not his or her spouse. It is also committed by the person with whom the guilty spouse has had carnal knowledge, provided that this person knew of the married status of the guilty spouse even if their marriage be subsequently declared void;

Impose the same penalties for offending parties for the same gravity of offense;

Apply to Muslims and members of indigenous communities whose cultures allow for multiple spouses, and who shall engage in sexual intercourse with any person other than their official spouses recognized by their respective faiths and traditions; and a impose higher penalties for public officers and employees, including but not limited to military personnel, government-owned and controlled corporations, those nominated by the government as members of the Board of Directors of GOCCs, and Philippine representatives to international organizations.

Written by: Evelyn Gorospe

• Equality in marital infidelity sought

Eliminating gender bias in prosecution of marital infidelity pushed

Committee Source: REVISION OF LAWS

“FUNDAMENTAL equality of women and men before the law.”

This Constitutional provision is the rationale behind the filing of three legislative measures that seek to define the crime of marital infidelity and amend relevant provisions in the Revised Penal Code pertaining to the crimes of adultery and concubinage.

The three measures, House Bills 999, 1820 and 5672, are respectively filed by Party List Representatives Emmanuel Joel Villanueva (CIBAC), Liza Maza and Luzviminda Ilagan (Gabriela), and Narciso Santiago III (Alliance for Rural Concerns).

Approved in principle by the Committee on Revision of Laws chaired by Representative Georgidi Aggabao (4th District, Isabela), the bills will be consolidated into a single measure by a technical working group created for this task.

Despite the constitutional right to equal treatment, a wife can be convicted of adultery for a single act of sexual intercourse with a man not her husband under Article 333 of the Revised Penal Code (Republic Act 3815).

On the other hand, the authors of the bill explained, a husband can only be convicted of concubinage under certain conditions which are difficult to prove. Article 334 of the same law states that the husband is liable for concubinage if he does any of the following: keeps a mistress in the conjugal dwelling, has sexual intercourse under scandalous circumstances with a woman who is not his wife, or cohabits with her in any other place.

Rep. Villanueva stated that “it is almost impossible for an aggrieved wife to obtain a conviction” against her husband for the crime of concubinage.

Moreover, the penalty imposed on a married woman convicted of adultery is heavier than a married man found guilty of concubinage. Both crimes are punishable by prision correccional, which means imprisonment from six months and one day to six years in its entirety. However, the difference lies in the fact that for the woman convicted of adultery, the penalty is applied in its medium and maximum periods (from two years and four months and one day to six years), while for the man convicted of concubinage, the penalty is applied in its minimum and medium periods (from six months and one day to four years and two months).

The authors explained that their respective bills aim to remedy such disparate treatment and gender bias in the prosecution of cases involving marital infidelity.

As such, the bills merge the crimes of adultery and concubinage into a single crime of marital infidelity and impose the same penalty on the guilty spouse as well as on the sexual partner.

Marital infidelity is defined in the three bills in varying language, but essentially, it refers to the act of a married person who has carnal knowledge of a person other than his or her legal spouse, and by any person who has carnal knowledge of a married person, knowing the latter to be married.

While HBs 1820 and 5672 impose the penalty of prision correccional in its minimum and medium periods for a person found guilty of marital infidelity, HB 999 imposes prision correccional in its medium and maximum periods.

In addition, Rep. Villanueva’s HB 999 imposes a harsher penalty of prision mayor in its minimum period, or imprisonment of six years and one day to eight years, on public officers and employees found guilty of marital infidelity.

HB 999 further provides that the crime of marital infidelity “may be prosecuted upon a complaint filed by the offended spouse, the ascendants, descendants and relatives by consanguinity or affinity within the fourth civil degree.” This provision amends Article 344 of the Revised Penal Code, which states that only the offended spouse can be the lawful complainant in such a crime.

The Committee readily gave its assent to the three bills noting that in previous congresses, similar measures were already widely discussed and even approved at the committee level. The technical working group tasked to consolidate the three bills shall be headed by Rep. Maza, whose output shall be presented to the Committee for its final approval.

Equality in marital infidelity sought

By Veronica UyINQUIRER.net First Posted 13:40:00 09/03/2007 Filed Under: Crime, Law & Justice

MANILA, Philippines -- Senator Richard Gordon is seeking to end the double standard in marital infidelity in the Philippines where under the Revised Penal Code requires a higher standard of proof when committed by a man than by a woman and where the woman is penalized more heavily than the man.

In Senate Bills 1362 and 1363, Gordon seeks to retain only either adultery (now only applicable to wives) or concubinage (now only applicable to husbands). The retained crime, as decided at the end of the legislative process, will then become marital infidelity that will apply to both husband and wife, he said.

“This legislative measure implements the State policy under the Constitution on the fundamental equality before the law of women and men,” he said in the bill.

“While dealing with the same basic subject of marital infidelity, adultery and concubinage differ in elements, circumstances, and penalties. One sexual intercourse by a wife with a man not her husband is already adultery, but concubinage can only be committed by a husband if he keeps a mistress in a conjugal dwelling, or has sexual intercourse with a woman not his wife under scandalous circumstances, or co-habits with his mistress in any other place,” Gordon said.

Adultery is punishable by a jail term of two years, four months, and one day to 12 years; concubinage, six months and one day to four years and two months, according to the Revised Penal Code.

Friday, November 23, 2007

New law on marital infidelity junkedBy Grace L. Plata

A GENDER rights group official denounced House Bill 999 filed by Representative Emmanual Joel Villanueva and House Bill 1820 filed by Representatives Liza Maza and Luzviminda Ilagan, saying they have no place in Philippine penal laws.

"If I were a lawyer who is out to enrich myself, I would probably say, go ahead and support the marital infidelity bills," said lawyer Clara Rita Padilla, executive director of EnGendeRights Inc., in her legal opinion of House Bill 999. The bill is an act defining and penalizing marital infidelity amending for the purpose Articles 333, 334 and 344 of the Revised Penal Code.

Padilla said HB 999 and HB 1820 seek to repeal the adultery and concubinary provisions of the Revised Penal Code and then impose a new crime called "marital infidelity" which equalizes the penalties for marital infidelity.

"The reason why lawyers who are out to enrich themselves would do this is because the effect of such a law is indeed the deluge of cases that will be filed by estranged husbands who are out there to perpetually harass their wives who have left them for a more suitable partner. Mind you, it would be the batterer husbands and those who have sought to control their wives who would line up to file these cases and not the ones who respect their wives' freedoms," Padilla said.

According to Padilla, the Convention on the Elimination of Discrimination against Women (Cedaw) provides for equality and non-discrimination of women but she added that equality in law does not simply mean equalizing the penalties for certain crimes for both women and men and not especially for "marital infidelity" cases.

"The essence of Cedaw provides for substantive equality such that the effect of laws would not discriminate against women. Equalizing the penalty for marital infidelity cases would discriminate women since the reality is that most marital infidelity cases are filed by men rather than women - more men still have more money than women and men use these marital infidelity cases against their wives as a form of abuse and torture on their wives," Padilla said.

Padilla said in many countries around the world, the criminal provisions imposed on adultery have already been repealed.

"The intended purpose of the criminal provision on adultery under the Revised Penal Code (circa 1932 and directly translated from the old Spanish Penal Code) is to protect the rights of real heirs. Many adultery cases, however, are filed by estranged husbands who have long been separated from their wives and who have no intention to reunite with their wives nor do they have any intention to support the illegitimate child of their wives," she said.

Padilla, who has spent 13 years of her professional career advocating women's rights, said adultery, concubinage, and marital infidelity cases do not have any place in Philippine law.

"On the contrary, these cases continue to perpetuate abuse in the family and impose torment on the children. The transitory years of the young children's lives are put to waste since their parents are constantly feuding. If the husband and wife cannot be together, then they should nullify the marriage. This is also why we are advocating for divorce so as not to subject the grounds to divorce on the differing interpretations of judges, psychiatrists, and psychologists," she said.

Marital infidelity cases, according to Padilla, also infringe upon one's right to have sexual relations with whom they want to and when they want to.

This is the commitment of the Philippines under the International Conference on Population and Development Programme of Action and the Beijing Platform for Action and the obligation of the Philippines under Cedaw and the International Covenant on Economic, Social and Cultural Rights.

The lady lawyer appeals to lawmakers to move for the repeal of laws on adultery and concubinage and certainly not pass any new law on marital infidelity.

Thursday, December 21, 2006

Under the present Philippine adultery and concubinage law, and despite the right to equal treatment under the law, a wife can easily be convicted for a single act of sexual intercourse, while the husband is only liable for concubinage if he does any of the following acts specified in Article 334 of the Revised Penal Code: (1) keeping a mistress in the conjugal dwelling; (2) having sexual intercourse under scandalous circumstances with a woman who is not his wife; or (3) cohabiting with her in any other place.

However, the Philippine archaic law will soon be repealed by House Bill 5729, popularly known as the "Marital Infidelity Law." Lawmakers passed the bill providing both married men and women equal rights to sue their unfaithful partners.

Rep. Joel Villanueva of the Citizen’s Battle Against Corruption (Cibac) said that under the current laws, it is easier to convict unfaithful wives with adultery compared to unfaithful husbands. This law will replace the crimes of adultery and concubinage with a single crime that shall be defined as marital infidelity, totally correcting the disparity in the treatment of husbands and wives.

Under the proposed measure, Villanueva said government officials found to be unfaithful to their spouses will be meted six to 12 years in jail.

Private citizens convicted of marital infidelity face a jail term of six months to six years.