Adultery and concubinage are criminalized under the law in the Philippines. Although both are marital infidelity, there is a difference vs adultery and concubinage in terms of grounds and penalties.
What comprises adultery and concubinage?
According to Article 333 of the Revised Penal Code, adultery in the Philippines refers to an extra-marital relationship of a woman to a man with the knowledge of her marriage. Moreover, a woman can be sued for adultery if she had sexual intercourse with a man, not her husband.
What is concubinage?
On the other hand, concubinage in the Philippines refers to a relationship of a married man to another woman, not his wife. Under Article 334 of the Revised Penal Code, a man can be sued for a crime of concubinage if he and his concubine or mistress live in the same place or cohabitate in a conjugal dwelling.
Adultery vs concubinage in the Philippines
There are lots of differences between adultery and concubinage under Philippine Law. These differences in adultery vs concubinage are deemed discriminative to women. Here are the reason why:
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Concubinage vs adultery
Adultery is committed by a wife and should be charged together with another man, not her husband. The other man that the wife is having an affair with is also called the paramour. On the other hand, concubinage is committed by a husband and should be charged together with his mistress or concubine.
Proof that the offending husband and the concubine had sexual intercourse is not enough in filing a case vs concubinage. It should be proven that the sexual intercourse happened under “scandalous circumstances.”
Aside from that, it is only considered concubinage if there is cohabitation happened between the husband and the other woman. On the contrary, an adultery case can be filed with only proof of sexual intercourse between the married woman and her paramour. This proof is sufficient to charge a woman and her other man with adultery cases.
If found guilty of concubinage, the offending husband may face imprisonment for up to four years. Meanwhile, his concubine may not be imprisoned.
The only consequence she has to take is banishment or prohibition from residing within the residence of the offending husband. Contrastingly, the married woman and her paramour, if found guilty of adultery may face imprisonment for up to six years.
Adultery vs concubinage: Penalties
The severity of penalties for adultery vs concubinage differs greatly.
The penalty that can be imposed on both the wife and her paramour who are guilty of adultery is:
- imprisonment from two years, four months, and one day up to a maximum of six years.
On the other hand, a husband guilty of committing concubinage can be penalized with:
- only six months, and one day of prison correctional, up to a maximum of four years and one day.
While the concubine or the husband’s other woman:
- cannot be imprisoned at all
- will only face destierro or banishment from residing in the offending husband’s house.
Concubinage and adultery in the Philippines are penalized under separate provisions in the Revised Penal Code. Although both are marital infidelity, the Philippine law places more burden on wives than husbands.
The heavier penalties imposed on those who commit adultery are justified by the law. The justification revolves around the concept that an extramarital relationship of a wife brings a greater possibility of having illegitimate children in the family without the husband’s knowledge.
Who can file a case vs infidelity?
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Only the spouse of the offending party has the right to file for a case vs adultery or concubinage. The marital status of the offended and the offending party should still be present at the time the case was filed. If the offending spouse and their paramour or concubine are still alive when the guilty verdict is given, both will be prosecuted.
The case vs adultery or concubinage cannot be pursued if the offended spouse pardoned the offenders. There are two ways how to pardon adultery and concubinage cases:
Implied pardon
This refers to a situation where the offended party decides or chooses to live with his or her spouse after the commission of offenses.
Express pardon
This is done by the offended spouse through a written affidavit. The offended spouse should write that the offending parties are pardoned for their actions.
Both types of pardon should be given before the granting of criminal action.
Is infidelity can be a ground vs annulment?
Adultery or concubinage is one of the most common reasons why husbands and wives file for annulment. However, infidelity is not considered a ground for annulment. It can only be used as a ground for legal separation or as a basis for filing a case vs adultery and concubinage.
Furthermore, adultery or concubinage is not also sufficient to be used as a deciding factor in granting custody over a child.
Repealing of provisions on adultery and concubinage in the Philippine law
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The Philippine Commission on Women calls for the RPC provisions on adultery and concubinage to be repealed. In their article published last 2020, they stated what adultery and concubinage are under the law in the Philippines.
According to PCW, the justification for the harsher penalties for the crime of adultery was laid down in 1911. And may not be applicable in the present generation.
Aside from that, the Philippine Commission on Women also stated the following reasons why there is a need for the RPC provisions on adultery and concubinage to be repealed:
- The penalties impact men and women disproportionately
- It gives excessive authorization to the state to interfere with the private lives of its citizens.
- Too much interference with the privacy of citizens violates other fundamental laws. Because consensual sexual activities between adults are considered part of the principle of privacy under the International Convention on Civil and Political Rights (ICCPR).
In the same article, it says that the Philippines, Brunei, and Taiwan are the only countries in the Asia-Pacific region that still criminalize adultery and concubinage. Other Asian countries such as Japan and India already decriminalized infidelity. Even South Korea declared the adultery law unconstitutional because it impacts individual rights to sexual determination and the right to privacy.
