Introduction

In the Philippine legal system, marital infidelity is criminalized under the Revised Penal Code (RPC), with distinct provisions for adultery (applicable to married women) and concubinage (applicable to married men). Concubinage, as defined in Article 334 of the RPC, addresses specific acts of unfaithfulness by a husband that undermine the sanctity of marriage. This article explores the nuances of charging concubinage in scenarios where the spouses are no longer cohabiting—such as in cases of de facto separation—but continue to share parental responsibilities for a common child. While physical separation may alter the dynamics of the relationship, it does not automatically negate the legal obligations and liabilities arising from the marriage bond. This discussion delves into the statutory framework, elements of the offense, evidentiary considerations, and the broader implications for family law, particularly in the context of child custody and support.

The persistence of concubinage charges in separated couples underscores the Philippines' conservative stance on marriage, where absolute divorce remains unavailable except under limited grounds like annulment or legal separation. As such, even estranged spouses remain bound by fidelity requirements until the marriage is legally dissolved or annulled. The presence of a shared child adds layers of complexity, potentially influencing the prosecution's approach, the defense strategies, and the overall impact on family welfare.

Legal Basis for Concubinage

Concubinage is enshrined in Article 334 of the Revised Penal Code, which states:

"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 prision correccional in its minimum and medium periods.

The concubine shall suffer the penalty of destierro."

This provision reflects the gender-specific nature of infidelity crimes in Philippine law, a remnant of Spanish colonial influences that treats adultery (Article 333) more severely for wives. The rationale is rooted in protecting the institution of marriage and ensuring the legitimacy of offspring, though modern critiques highlight its patriarchal bias.

Importantly, the law does not require ongoing cohabitation between spouses for concubinage to be applicable. The marriage must simply be subsisting—meaning it has not been annulled, declared null and void, or legally separated under Article 55 of the Family Code (which allows legal separation but does not dissolve the marriage bond). De facto separation, where spouses live apart without a court decree, does not alter the marital status. Thus, a husband who engages in the prohibited acts can still be charged, regardless of whether he and his wife are living together.

Elements of Concubinage

To establish concubinage, the prosecution must prove the following elements beyond a reasonable doubt:

The offender is a married man (husband). The marriage must be valid and subsisting at the time of the offense. Proof of marriage, such as a marriage certificate, is essential.
He commits any of the following acts:
- Keeping a mistress in the conjugal dwelling (the family home).
- Having sexual intercourse with a woman not his wife under scandalous circumstances (e.g., in public or in a manner that causes public outrage).
- Cohabiting with her in any other place (implying a continuous or habitual living arrangement, not merely isolated encounters).
The woman (concubine) knows that the man is married. While the husband's liability is primary, the concubine's knowledge triggers her own penalty of destierro (banishment).

The element of cohabitation in "any other place" is particularly relevant in separation scenarios. Jurisprudence interprets "cohabitation" as more than casual meetings; it requires a degree of permanence, such as sharing a residence or maintaining a household together. However, even if the spouses are separated, the husband's establishment of a new cohabitation arrangement with another woman can fulfill this element.

In cases where spouses no longer cohabit, the "conjugal dwelling" aspect may be inapplicable if the family home is abandoned. Instead, charges often hinge on the "scandalous circumstances" or "cohabitation elsewhere" prongs. For instance, if a separated husband openly lives with another woman in a different residence, this could constitute concubinage, provided the other elements are met.

Impact of De Facto Separation on Charging Concubinage

De facto separation—living apart without judicial intervention—does not immunize a husband from concubinage charges. Philippine courts have consistently held that physical separation does not dissolve the marriage or excuse infidelity. Under the Family Code (Executive Order No. 209, as amended), marriage is a permanent union unless terminated by death, annulment, or declaration of nullity. Legal separation under Article 55 allows spouses to live separately but prohibits remarriage and maintains fidelity obligations.

In practice, separated wives may file concubinage complaints as a means to address ongoing infidelity, especially when it affects financial support or child-rearing. However, proving the offense can be challenging post-separation:

Evidentiary Hurdles: Without shared living spaces, gathering evidence of cohabitation or scandalous acts may require surveillance, witness testimonies, or digital records (e.g., social media posts, hotel receipts). The standard of proof is high, as mere suspicion or hearsay is insufficient.
Prescription Period: Under Article 90 of the RPC, concubinage prescribes in 10 years from the date of discovery by the offended party. Separation may delay discovery, extending the window for filing.
Pardon or Consent: Article 344 of the RPC allows the offended spouse to pardon the offender, extinguishing criminal liability. In separated couples, implied consent (e.g., through mutual separation agreements tolerating new relationships) might be argued as a defense, though courts scrutinize this closely to avoid undermining public policy.

Despite these, charges can proceed if the wife, as the offended party, files a complaint-affidavit with the prosecutor's office, leading to preliminary investigation and potential indictment.

Role of a Shared Child in Concubinage Proceedings

The presence of a common child introduces significant considerations, intertwining criminal law with family law principles under the Family Code and the Child and Youth Welfare Code (Presidential Decree No. 603, as amended).

Child as a Factor in Motivation for Filing: Often, separated wives pursue concubinage charges not solely for retribution but to leverage them in related civil actions, such as petitions for child support, custody, or protection orders under Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act). If the husband's concubinage involves diverting resources to a new partner, this could be framed as economic abuse affecting the child.
Impact on Custody and Support: While concubinage itself does not directly determine custody (governed by the best interest of the child under Article 213 of the Family Code), a conviction could influence family court decisions. Courts may view the husband's infidelity as indicative of moral unfitness, potentially favoring the mother in custody disputes, especially for children under seven years old (tender years presumption). Additionally, under Article 194 of the Family Code, support obligations persist regardless of separation, and concubinage evidence might support claims for increased support if family resources are misallocated.
Child's Welfare in Prosecution: Prosecutors and courts consider the child's well-being. Prolonged litigation could exacerbate family conflict, leading to recommendations for mediation or alternative dispute resolution. In extreme cases, if concubinage involves exposing the child to the mistress (e.g., in shared visitation), it might trigger child protection interventions under Republic Act No. 7610 (Special Protection of Children Against Abuse, Exploitation, and Discrimination Act).
Paternity and Legitimacy: A shared child presumes legitimacy if born within the marriage, but concubinage does not inherently challenge this. However, if the separation predates the child's conception, related issues like adultery charges against the wife could arise, complicating matters.

Defenses and Mitigating Factors

Defendants in concubinage cases involving separated couples may raise:

Lack of Cohabitation or Scandal: Arguing that the relationship lacks the permanence required for "cohabitation" or that acts were discreet.
Abandonment or Mutual Fault: Claiming the wife abandoned the marriage first, though this does not negate criminal liability.
Nullity of Marriage: If the marriage is void ab initio (e.g., due to bigamy), no concubinage can be charged.

Mitigation might include reconciliation efforts or the absence of public scandal, potentially leading to lighter sentences or probation under the Probation Law (Presidential Decree No. 968, as amended).

Broader Implications and Reforms

Charging concubinage in separated families highlights tensions in Philippine law: the criminalization of infidelity versus the reality of broken marriages without divorce. Critics argue that such laws perpetuate gender inequality and hinder personal autonomy. Pending bills for divorce (e.g., House Bill No. 100 introduced in recent Congresses) could reshape this landscape, potentially decriminalizing infidelity in dissolved marriages.

In the interim, affected parties are advised to seek legal counsel for integrated strategies involving criminal complaints, family court petitions, and alternative resolutions like annulment.

Conclusion

Concubinage remains a viable charge in the Philippines even when spouses no longer cohabit but share a child, as long as the marriage subsists and the elements are proven. This intersection of criminal and family law emphasizes the enduring legal ties of marriage, prioritizing societal values over individual circumstances. For separated parents, navigating such charges requires balancing justice with the child's best interests, often necessitating multifaceted legal approaches. Understanding these dynamics is crucial for practitioners, policymakers, and families alike in upholding both marital fidelity and familial harmony.