Article 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 prison correctional in its minimum and medium periods.
The concubine shall suffer the penalty of 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. While it is technically not imprisonment, it still is a penalty imposed under the Revised Penal Code of the Philippines.
The crime of concubinage is considered a private crime which may only be prosecuted by the offended spouse.
However, the offended party shall not be allowed to file a complaint for concubinage without including both the guilty parties, if they are both alive, nor, in any case, if she shall have consented or pardoned the offenders (Article 344, RPC).
To successfully prosecute them of the crime of concubinage, you need to prove the following elements:
1) The husband and wife are married;
2) The husband committed any of the following acts:
a) keeping a mistress in the conjugal dwelling;
b) having sexual intercourse under scandalous circumstances with a woman not his wife;
c) cohabiting with her in any other place;
3) as regards the woman, she must know your husband to be married (Luis B. Reyes, The Revised Penal Code (Book Two), page 848).
The crime of concubinage can be committed only by a husband and his concubine, but it requires that the wife must prove that her husband has kept a mistress in the conjugal dwelling, or has had sexual intercourse under “scandalous circumstances” or lived together with his mistress in any another place
ADULTERY
As defined under 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.”
THE ELEMENTS OF ADULTERY
1. The woman is married;
2. The woman had sexual intercourse with a man not her husband;
3. The man she had sexual intercourse is aware that she is married.
THE CRIME OF ADULTERY CAN BE FILED IF:
1. The married woman engages in sexual intercourse with a man not her husband;
2. The man is aware of the marriage of the woman, but still engages in sexual intercourse with her.
The offended spouse should be the one to file a case of adultery against the offending spouse. Unlike the criminal offenses of rape acts of lasciviousness, seduction and abduction, no one else can file a case of adultery on behalf of the offended spouse.
In adultery, proof of sexual intercourse is enough to file a case against the wife and her lover. If proven guilty, the woman may face imprisonment from 2 years, 4 months and 1 day to 6 years.
However, if the crime was committed due to the abandonment by the offended spouse, the offending parties will face imprisonment from 6 months and 1 day to 2 years and 4 months. If the husband chooses to pardon his wife, the offending party will be absolved of the crime of adultery and the offended party can no longer charge her.
To grant pardon to the offending party, the pardon should come before the institution of the criminal prosecution and both offenders must be pardoned and not just the wife.