Disclaimer: This article is provided for general informational purposes and does not constitute legal advice. For specific legal concerns or questions, consult a qualified attorney in the Philippines.

I. Introduction

In the Philippines, extramarital affairs may give rise to criminal charges under the Revised Penal Code (RPC). Two distinct crimes related to marital infidelity exist: adultery and concubinage. The offense of concubinage pertains to a married man who cohabits or maintains a relationship with a woman other than his wife under specific, punishable circumstances. This article aims to provide a comprehensive overview of concubinage under Philippine law—its legal basis, elements, penalties, procedural aspects, defenses, and prevailing jurisprudence.

II. Legal Basis

A. Revised Penal Code

Article 334 (Concubinage)
Concubinage is defined and penalized under Article 334 of the Revised Penal Code of the Philippines. It sets out the circumstances under which a married man commits the crime and prescribes the penalties for both the offending husband and his alleged concubine (the woman involved).
Related Provision: Article 333 (Adultery)
While this article focuses on concubinage, it is important to note the closely related offense of adultery under Article 333, which penalizes a married woman who has sexual intercourse with a man not her husband. Adultery and concubinage are different crimes with distinct elements and requirements for prosecution, reflecting the historical legal framework in the Philippines.

III. Distinction Between Concubinage and Adultery

Who Can Commit the Crime
- Adultery: Committed by a married woman with a man who is not her husband.
- Concubinage: Committed by a married man with a woman who is not his wife.
Nature of the Acts
- Adultery: Every act of sexual intercourse is considered a separate count of adultery.
- Concubinage: The emphasis is on cohabitation or maintenance of a mistress in specific scandalous ways, rather than each act of intercourse being treated as a separate offense.
Penalties
- Adultery: The penalties for the wife and her paramour are the same (prisión correccional in its medium and maximum periods).
- Concubinage: The husband generally faces a lighter penalty (prisión correccional in its minimum and medium periods), while the concubine is punished with destierro (banishment).
Reasons for Distinction
Historically, the law has drawn this distinction on the ground that a married woman’s infidelity may cast doubt on the legitimacy of offspring, while the same logic was deemed less pressing for a married man’s infidelity. This framework has been criticized for being discriminatory. Regardless, it remains in effect and binds courts unless and until amended by legislation.

IV. Elements of Concubinage

Under Article 334 of the RPC, a married man commits concubinage if he commits any of the following acts:

Keeping a Mistress in the Conjugal Dwelling
- The married man maintains a woman other than his wife in their common home or residence.
Cohabiting with a Woman in Any Other Place
- The man sets up a common abode with his mistress in another location.
- “Cohabitation” implies a continuous or habitual dwelling together as husband and wife.
Having Sexual Intercourse with a Woman Under Scandalous Circumstances
- The relationship is carried out in such a way as to offend the moral sensibilities of the community; it is open, public, or notorious.
- Proof of “scandalous circumstances” generally requires evidence that the relationship was public knowledge, or that the couple exhibited behavior offensive to public decency.

These elements must be concurrent with the fact that the man is validly married at the time the offense is committed.

V. Penalties

Under Article 334, the penalties differ for the husband and his concubine:

For the Husband
- Prisión correccional in its minimum and medium periods (i.e., from 6 months and 1 day up to 4 years and 2 months).
For the Concubine (the Woman Involved)
- Destierro, or banishment, usually requiring her to stay at least 25 kilometers away from the offended wife’s residence and other specified areas, for a designated period.

Note that these penalties must be understood within the specific guidelines for the imposition of imprisonment in the Philippines. Moreover, judicial discretion will determine the precise length of the penalty within these ranges, taking into account aggravating or mitigating factors.

VI. Parties Involved and Complaint Requirements

A. Who May File the Complaint

Concubinage is categorized as a private crime. Only the offended spouse (the wife in the case of concubinage) has the legal standing to initiate a criminal complaint against her husband and his alleged mistress. The State cannot prosecute concubinage motu proprio (on its own).

B. Indispensable Party Rule

Under Philippine jurisprudence, the husband and the concubine are considered to be “indispensable parties” in a concubinage case. This generally means:

The concubine cannot be prosecuted separately if charges are not also brought against the husband.
A conviction of the concubine typically requires proving the same set of facts that lead to the conviction of the husband.

C. Period to File the Complaint

The offended wife must file the complaint within the prescriptive period set by law. Generally, crimes punishable by prisión correccional prescribe in ten years. However, it is best to consult the exact rules on prescription and file the case as soon as the offense is discovered.

D. Affidavit of Desistance or Pardon

If the offended wife pardons the offenders or executes an affidavit of desistance, this may extinguish the action or pose significant challenges to prosecution. However, the courts will evaluate whether the pardon or affidavit is legally valid and freely given.

VII. Evidence and Proof

A. Cohabitation and “Scandalous Circumstances”

One of the more challenging aspects for prosecution is proving that the married man cohabited with the alleged mistress or maintained her in the conjugal dwelling. Evidence may include:

Documentation such as lease agreements, utility bills, or correspondences indicating both parties reside at the same address.
Witness Testimonies from neighbors, friends, relatives, or third parties who can attest to habitual cohabitation or the woman’s presence in the conjugal home.
Photographs or Videos showing them living or staying together regularly.

For the “scandalous circumstances” prong, there must be convincing evidence that the acts were “open to the public,” offended public morals, or were generally known in the community.

B. Corpus Delicti

The prosecution must establish the following key facts beyond reasonable doubt:

The valid and subsisting marriage of the husband.
Identity of the woman with whom he allegedly cohabited or maintained.
Occurrence of at least one of the three modes of concubinage under Article 334.

Given the stringent standard of proof in criminal cases (i.e., beyond reasonable doubt), mere suspicion or rumor of infidelity will not suffice.

VIII. Defenses in Concubinage Cases

No Valid Marriage
- If the marriage is null and void ab initio (e.g., void due to lack of requisite formalities or psychological incapacity declared by a competent court), the charge for concubinage cannot stand.
Lack of Cohabitation or Scandal
- Demonstrating that the man and the alleged mistress did not live together or that any purported affair did not occur under scandalous circumstances can refute one or more elements of the offense.
Absence of Criminal Intent / No Maintenance in the Conjugal Home
- If the man did not introduce or keep the woman in the conjugal dwelling, did not cohabit with her in another location, and did not engage in scandalous behavior, concubinage cannot be established.
Pardon or Condonation
- Under the RPC, pardon by the offended spouse prior to the filing of the complaint is a legal bar to criminal prosecution. If the wife voluntarily and expressly pardons her husband (and the concubine), the case may be dismissed or may not prosper. However, such pardon must be in writing and unconditional.
Withdrawal of Complaint
- As a private crime, prosecution cannot generally proceed if the offended spouse withdraws the complaint or refuses to cooperate. However, the prosecution may still have discretion in certain circumstances if evidence is sufficient, but typically, an affidavit of desistance severely weakens a private crime case.

IX. Jurisprudence and Policy Considerations

A. Gender Disparity

Critics argue that the difference in treatment (i.e., heavier penalty for adultery vs. a relatively lighter penalty for the husband in concubinage) reflects gender bias in the law. Multiple legislative proposals have sought to equalize the legal consequences of marital infidelity, but the statutory distinctions remain in effect unless and until amended.

B. Difficulty of Proof

Courts have repeatedly underscored the high bar required to prove concubinage. Merely having an affair or being spotted in private moments does not automatically amount to cohabitation or scandalous behavior. Jurisprudence emphasizes that prosecutors must present clear, convincing, and concrete evidence of the offense’s elements.

C. Public Morals and Changing Social Norms

Despite evolving social norms, the Philippine legal system continues to regard marital infidelity as a potential criminal matter, grounded in traditional moral and social values. Debates persist over whether such criminal sanctions are appropriate or whether they should be replaced by civil remedies.

X. Practical Considerations for the Offended Spouse

Consult a Lawyer
- Concubinage cases can be emotionally charged and complex. Seeking legal counsel early ensures that the offended spouse understands the evidentiary requirements, possible outcomes, and alternative remedies (e.g., civil separation, annulment, or legal separation).
Gather Evidence
- If filing a case, the offended spouse should compile all relevant evidence—documents, photographs, witness affidavits—to substantiate claims of cohabitation or scandalous behavior.
Assess Emotional and Financial Costs
- A concubinage complaint can be lengthy and may strain the family emotionally and financially. Weighing the pros and cons—such as possible reconciliation, custody of children, property division—can help in determining whether to pursue criminal charges.
Alternative Legal Remedies
- Beyond criminal prosecution, the offended spouse can explore filing for legal separation, initiating civil actions for support or damages, or even seeking an annulment if grounds exist under the Family Code (e.g., psychological incapacity).

XI. Conclusion

Concubinage remains a legally recognized crime in the Philippines, rooted in Article 334 of the Revised Penal Code. While it specifically addresses acts of infidelity by a married man, its evidentiary and procedural requirements make prosecution challenging. The offended wife must carefully consider her objectives and gather sufficient proof to establish cohabitation, scandalous intercourse, or maintenance of a mistress in the conjugal dwelling.

The law on concubinage highlights longstanding issues of gender inequality, as penalties and definitions differ from those applied to adultery. Nonetheless, until the law is reformed, these provisions remain binding. Anyone facing or contemplating legal action under concubinage statutes is advised to consult a qualified Filipino lawyer to navigate the complexities and protect their rights in this deeply personal and sensitive area of law.

Disclaimer: This article is intended for general informational purposes only and does not constitute legal advice. If you have specific questions about a concubinage case or related legal issues, consult a licensed attorney in the Philippines for professional guidance.