Handout In Criminal Law II (Adultery and Concubinage)

Donita Rose T. Pagsanjan (reporter)

There are two reasons why adultery is made punishable by law. Primarily it is a violation of the marital vow and secondarily, it paves the way to the introduction of a spurious child into the family. In such a situation, it becomes inevitable that the spurious child impairs the property rights of the legitimate children and it gives rise to an anomalous spectacle where a man supports and maintains a child not his own. (People v. Mata, 18 Phil. 490) The elements of adultery are: 1. That the woman is married 2. That she has sexual intercourse with a man not her husband 3. That s regards the man with whom she has sexual intercourse, he must know her to be married Once it is shown that a man and a woman lived as husband and wife, and none of the parties denied and contradicted the allegation in the complaint, the presumption of their being married must be admitted as a fact (U.S v. Villafuerte, 4 Phil. 476) BUT, if the accused woman and her alleged paramour claim to be married, then it is necessary that the marriage of the complainant and the accused woman be proved (People v. Nebrida, et al., 32 Phil 160) The offended party must be legally married to the offender at the time of the criminal case (Pilapil v. Ibay-Somera, 174 SCRA 653) For the crime of adultery, the judicial validity of the offending womans marriage is not involved, as adultery can be committed even if that marriage be subsequently declared void or voidable but a judicial declaration whereof is necessary. The reason for this is that even void marriages produce legal effects regarding the children, hence the danger of introduction of false heirs exists (U.S. v. Mata, 18 Phil 490) Proof of Marriage-The declaration of the husband is competent evidence to show the fact of marriage. A witness who was present at the time the marriage took place is likewise a competent witness to testify as

to the marriage between the parties. (U.S. v. Memoracion, et al., 34 Phil. 633) 4(12) Corroboration of the testimony is necessary. In Memoracion case, proof of the marriage consisted of the testimony of the offended husband and a person present at the wedding. This was held to be sufficient. But if the proof offered to prove the marriage was the uncorroborated testimony of the complainant only, and, on the other hand, the offenders claimed to have been married, there could be no conviction for adultery. (Nebrida, 32 Phil 160) The finding in the possession of a married woman of several love letters signed by her paramour, their having been together in different places; and the fact that they were surprised in a well-known assignation house which the accused woman admitted to have visited six times in company with her paramour are data and indications sufficient to convict them both of adultery (U.S v. Legaspi, 14 Phil 38). The nature of adultery is such that it can not often be established by direct evidence. Nevertheless, strong circumstantial and corroborative evidence, such as will lead the guarded discretion of a reasonable and just man to the conclusion that the alleged has been committed, is sufficient to sustain a conviction for adultery. Also, the evidence which was considered sufficient: 1) photograph showing the intimate relations of the two accused; and 2)testimony of a witness to the effect that the two accused were in scant apparel and sleeping together. Such evidence is sufficient to show that the two accused had the opportunity to satisfy their adulterous inclination. (U.S. v. Feliciano, 36 Phil. 753) Each sexual intercourse constitutes a crime of adultery. (People v. Zapata, et al., 88 Phil. 688) Abandonment without justification is not exempting but only mitigating.

Abandonment could not serve her as an excuse or free her from the criminal responsibility she incurred by the breach of fidelity she owed her husband, for she had means within the law to compel him to fulfill the duties imposed upon him by marriage. (U.S. v. Serrano, et al., 28 Phil. 230) Sheer necessity, mitigating liability of the married woman. Although in the beginning the man did not know of the woman s married status, but he continued his illicit relations with her he gained knowledge of such status, he will be guilty of adultery as regards the sexual intercourse done after having such knowledge (US v. Topino, et al., 35 Phil 901) A married man who is not liable for adultery, because he did not know that the woman was married, may be held liable for concubinage. (Del Prado v. De la Fuerte, 28 Phil 23) The husband, knowing that his wife, after serving sentence for adultery, resumed living with her co-defendant, did nothing to interfere with their relations or to assert his rights as husband. Shortly thereafter, he left for Hawaii where he remained for seven years completely abandoning his wife and child. The second charge adultery shall be dismissed because of consent (PP v. Sensano and Ramos, 58 Phil 73) The Elements of Concubinage are: 1. That a man must be married 2. That he committed any of the following acts: a. keeping a mistress in the conjugal dwelling, b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife;

c. cohabiting with her in any other place 3. That as regards the woman, she must know him to be married A married man is not liable for concubinage for mere sexual relations with a woman not his wife. (People v. Santos, et al., C.A., 45 O.G. 2116) Concubinage by having sexual intercourse under scandalous circumstances (U.S. v. Macabagbag, et al., 31 Phil. 257; People v. Santos, et al., 45 O.G. 2116) When spies are employed, there is no evidence of scandalous circumstances U.S v. Campos Rueda 35 Phil. 51)