1) Overview

Concubinage is a criminal offense under Article 334 of the Revised Penal Code (RPC). It penalizes specific sexual/relationship conduct committed by a married man under defined circumstances involving a woman who is not his wife. Concubinage is not simply “cheating” in a general sense; the law requires particular modes of commission and particular proof.

Concubinage is distinct from:

Adultery (Art. 333, RPC) – generally concerns a married woman having sexual intercourse with a man not her husband (and the man who has carnal knowledge of her knowing she is married).
Violence Against Women and Their Children (VAWC, RA 9262) – a separate law that may apply to abuses (including economic, psychological, and sexual) arising from a marital or dating relationship; it is not a “substitute” concubinage case, but may provide other remedies depending on facts.

This article focuses on concubinage under Philippine criminal law: its elements, evidence, procedure, and practical considerations.

2) What the Law Punishes: The Three Modes of Concubinage

A married man commits concubinage only if he does any of the following with a woman who is not his wife:

Mode A: Keeping a mistress in the conjugal dwelling

“Conjugal dwelling” refers to the home of the spouses (the marital home). The offense arises when the husband keeps (maintains/harbors) the mistress in that dwelling—not merely visits her there once.

Key idea: The law treats bringing/maintaining a mistress in the marital home as a particularly aggravated affront to the wife and the marriage.

Mode B: Having sexual intercourse under scandalous circumstances

This mode focuses on publicity and notoriety that makes the conduct scandalous—more than private immorality. It is not enough that intercourse occurred; the circumstances must be such that the community would find it shocking or offensive because of its open, notorious character.

Key idea: “Scandalous” is about circumstance—the public and offensive manner—rather than the private act alone.

Mode C: Cohabiting with the mistress in any other place

This mode punishes living together as if spouses elsewhere (not necessarily in the conjugal dwelling). Cohabitation implies a more or less permanent living arrangement, not an isolated overnight stay.

Key idea: The law requires a semblance of a shared domestic life—a continuing arrangement, not a single rendezvous.

3) Elements of Concubinage (What Must Be Proven)

To convict for concubinage, the prosecution must establish, beyond reasonable doubt:

The accused man is legally married at the time of the acts.
The woman is not his wife.
The husband committed at least one of the three punishable modes:
- kept a mistress in the conjugal dwelling; or
- had sexual intercourse with her under scandalous circumstances; or
- cohabited with her in any other place.

Notes that often matter in practice

Marriage is central. No legal marriage = no concubinage. (If the man is single, this crime does not apply.)
The law is mode-specific. Proof of an affair without proof of Mode A, B, or C can fail as concubinage.
Concubinage is committed by the husband, but the mistress may also be prosecuted as an accused in the same case (see penalties below).

4) Penalties and Who Is Punished

For the husband

The penalty is prisión correccional in its minimum and medium periods (a penalty within the range of imprisonment typically exceeding 6 months and up to 6 years, divided by periods), depending on the court’s determination of period and mitigating/aggravating circumstances if any.

For the mistress

The mistress is penalized with destierro (banishment), meaning the court orders her to stay away from certain places (commonly within a specified radius from the offended party’s residence or specified locality) for a set period.

Important: The mistress’s liability is tied to the husband’s concubinage. In practice, the complaint commonly names both as respondents/accused.

5) Who Can File (and Why This Matters)

Concubinage is a private crime. This is crucial:

Only the offended wife may file the complaint.
The criminal action generally cannot proceed without her initiative.
The offended wife is not just a witness; she is the complainant whose participation is required for the case to begin and proceed.

Requirement to include both parties

As a rule in private crimes like concubinage, the complaint should include both the husband and the mistress, except in limited situations where one cannot be proceeded against for legal reasons (for example, death). The idea is that the law does not favor selective prosecution where one party is pursued while the other is spared.

Prior consent or pardon

If the offended wife consented to the acts or pardoned the offenders, it can bar or extinguish criminal action. Pardon may be express or implied by conduct in some cases, but courts typically require clear indications. (Because this is fact-sensitive, it is often litigated.)

6) What Counts as Evidence (and What Usually Fails)

Because concubinage is mode-specific, evidence must be aimed at proving the mode and not just “they have a relationship.”

A. Evidence for “keeping a mistress in the conjugal dwelling”

Helpful proof may include:

Testimony that the mistress lived in the marital home (neighbors, household staff, barangay officials).
Documents showing the mistress’s presence as a resident (IDs listing the address, delivery records, mail, barangay certifications—though the weight depends on how obtained and corroborated).
Photos/videos showing the mistress regularly staying there, personal belongings, routine domestic presence.
Admissions by either party (texts/messages can be relevant but must be properly authenticated).

Common weak points:

Proof that the husband merely visited the mistress in the marital home is different from proof he kept her there.
A single incident is rarely enough to show “keeping” unless exceptionally clear.

B. Evidence for “scandalous circumstances”

This is often the hardest to prove because it requires the “scandalous” quality. Helpful proof may include:

Witnesses describing open, notorious acts—public displays that created community scandal.
Evidence of the couple openly presenting themselves as a couple in a manner offensive or notorious within the community (not merely “people suspect”).
Reports/complaints from community members (again, weight depends on testimony and corroboration).

Common weak points:

Private intercourse, even if known later, may not meet “scandalous circumstances.”
Mere gossip or rumor is not proof of scandalous circumstances; it must be anchored in specific observable acts and credible testimony.

C. Evidence for “cohabitation in any other place”

Helpful proof may include:

Witness testimony that they live together (e.g., neighbors, landlord, security guards, subdivision personnel).
Lease agreements, utility bills, deliveries, or IDs showing both using the same address.
Evidence of a shared domestic routine: regular overnight stays, shared household arrangements, joint expenses, shared keys, etc.
Photos/videos indicating the mistress’s consistent residence and domestic presence.

Common weak points:

One or two overnight stays usually do not establish cohabitation.
Hotel receipts alone often show meetings, not cohabitation—unless part of a long-term arrangement with clear proof of living together.

7) Digital Evidence: Texts, Chats, Photos, Location Data

Digital materials are common in these cases, but they must be:

Relevant to the legal elements (Mode A/B/C), and
Admissible under rules on evidence (authenticity, integrity, identification).

Practical admissibility considerations

Screenshots alone can be attacked as fabricated or incomplete; stronger is a device-based extraction or testimony from someone with personal knowledge who can identify the conversation and participants, plus corroboration.
Metadata (timestamps, account identifiers, geotags) can help but must be explained and tied to a reliable source.
Chain of custody and preservation matter if the defense contests authenticity.

Privacy and legality concerns

Improperly obtained evidence can create problems. Evidence obtained through unlawful intrusion or hacking may expose the complainant to other legal risks and can undermine the case. In practice, it is safer to rely on materials you lawfully possess (e.g., messages sent to you, publicly available posts, information obtained with consent or through lawful processes).

8) Defenses and Common Issues Raised

Common defenses include:

Not married or marriage void (the prosecution must prove a valid marriage; if the accused attacks validity, it becomes an issue).
No concubinage mode proven (affair alleged, but no proof of conjugal dwelling keeping, scandalous intercourse, or cohabitation).
Mistaken identity (for the mistress or the husband’s alleged partner).
Pardon/consent by the offended wife.
Alibi or denial, especially against claims of cohabitation.
Insufficient authentication of messages/photos/videos.

Because of the high standard (proof beyond reasonable doubt), cases often succeed or fail on credible witnesses and solid corroboration rather than on suspicions or isolated pieces of evidence.

9) Where and How to File: Step-by-Step (Criminal Process in Practice)

Step 1: Prepare the complaint

As the offended wife, you (usually through counsel) prepare a Complaint-Affidavit containing:

Your marital details (proof of marriage).
The identity details of the husband and mistress (as complete as possible).
A clear narration of facts that specifically fit Mode A, B, or C.
Attach supporting evidence (documents, photos, screenshots, affidavits of witnesses).

Step 2: File with the Office of the City/Provincial Prosecutor

Concubinage is generally filed with the Office of the Prosecutor in the place where the offense (or an essential element) occurred (e.g., where cohabitation is happening, where the conjugal dwelling is located, or where scandalous circumstances occurred).

The prosecutor conducts preliminary investigation to determine probable cause.

Step 3: Preliminary investigation process

Typically includes:

Submission of your complaint-affidavit and attachments.
The respondents (husband and mistress) are required to submit their counter-affidavits and evidence.
You may submit a reply-affidavit addressing defenses and clarifying points.
The prosecutor evaluates evidence and issues a resolution.

Possible outcomes:

Dismissal for lack of probable cause.
Filing of Information in court if probable cause is found.

Step 4: Filing in court and trial

If the prosecutor files an Information, the case proceeds in the appropriate trial court. The prosecution then must prove guilt beyond reasonable doubt.

You may be required to testify, and so may your witnesses.

10) Practical Drafting Tips: Building a Strong Complaint

A complaint that merely says “my husband has a mistress” is not enough. The narrative must be built around the mode:

If alleging “kept in the conjugal dwelling”

Include:

Address of conjugal dwelling.
How you know she stayed there (specific dates, observations, witness names).
Signs of residency (belongings, routines, neighbors’ observations).

If alleging “cohabitation elsewhere”

Include:

Exact address of alleged cohabitation.
Frequency and duration (e.g., “since June 2025 they have lived together daily…”).
Who can testify (landlord, neighbors, guards).
Documents tying them to the address.

If alleging “scandalous circumstances”

Include:

What precisely happened publicly.
Where, when, who saw it.
How it caused public scandal (specific community reactions, not generalized statements).

11) Timeline and Strategy Considerations

Act early on evidence preservation. Witness memories fade; lease/utility records change; posts get deleted.
Choose the correct legal track. Some spouses file concubinage expecting it to punish any affair; but concubinage requires Mode A/B/C. If your evidence fits a different legal remedy better (e.g., civil actions, family law remedies, protection orders where applicable), a lawyer may recommend that route.
Expect counter-allegations. Respondents often claim harassment, defamation, or insist evidence was illegally obtained. Keep communications disciplined and evidence-gathering lawful.

12) Relationship to Civil and Family Law Remedies (Context)

Concubinage is criminal, but marital disputes often involve parallel or alternative actions, such as:

Legal separation (fault-based grounds, different standards).
Nullity/annulment proceedings (governed by the Family Code and jurisprudence; separate from criminal liability).
Civil actions for damages in appropriate circumstances (fact-dependent).
Property and support disputes (separate legal frameworks).

A concubinage case does not automatically dissolve a marriage, transfer property, or award custody; those require separate proceedings.

13) Key Takeaways

Concubinage is not a general “infidelity” crime; it punishes specific acts by a married man under three legally defined modes.
The offended wife is the only person who can file the complaint.
The success of a case depends on evidence that fits Mode A (kept in conjugal dwelling), Mode B (scandalous circumstances), or Mode C (cohabitation elsewhere)—not just proof of an affair.
Build the case around credible witnesses, documentary proof of residence/cohabitation, and properly authenticated evidence.