Concubinage in the Philippines: Liability of a Woman Who Didn’t Know the Man Was Married

Snapshot

Crime defined: Concubinage is a felony committed by a married man who: (1) keeps a mistress in the conjugal dwelling; or (2) has sexual intercourse under scandalous circumstances with a woman not his wife; or (3) cohabits with her in any other place.
Who gets punished: The husband (principal) and the concubine (the woman) are both punishable.
Penalties: Husband — prisión correccional in its minimum and medium periods (≈ 6 months and 1 day up to 4 years and 2 months). Woman — destierro (banishment: barred from entering specified places within a 25–250 km radius).
Private offense: Prosecution begins only upon complaint of the offended wife. If both offenders are alive, both must be included in the complaint; consent/pardon before filing bars the case.

The Core Issue: Must the Woman Know He Is Married?

Short answer: For concubinage, the law does not make the woman’s knowledge of the man’s prior marriage an element of the crime.

In adultery (the mirror offense for a married woman), the statute expressly requires that the man knew the woman to be married.
In concubinage, the statute omits any “knowledge” requirement for the woman. The focus is on the husband’s marital status and the qualifying circumstances (keeping in the conjugal home, scandal, or cohabitation).
Result: A woman may be criminally liable for concubinage even if she honestly believed the man was single, provided the prosecution proves one of the statutory modes (e.g., scandalous intercourse, cohabitation, or being kept in the conjugal dwelling).

Why this difference matters

Concubinage is largely framed around the husband’s breach of marital fidelity and the public/familial affront (conjugal home, scandal, or cohabitation).
Because knowledge is not an element, lack of awareness is not a complete defense to the woman’s criminal liability—unlike in adultery.

Elements the Prosecution Must Prove

A validly subsisting marriage of the male accused at the time of the acts.
One of the three modes:
- Keeping a mistress in the conjugal dwelling (habituality is normally inferred: being “kept” in the marital home is more than a one-off tryst).
- Sexual intercourse under scandalous circumstances with a woman not his wife (openness/visibility that shocks public decency).
- Cohabitation with her in any other place (living together as spouses; habituality again tends to be relevant).
Initiation by the offended wife through a sworn complaint against both (if both are alive), not by the State on its own.
Absence of consent or prior pardon from the wife.

Each sexual act under the “scandalous intercourse” mode can constitute a separate count. “Keeping in the conjugal dwelling” and “cohabitation elsewhere” tend to be treated as continuing situations until abandoned.

What “Scandalous” and “Cohabitation” Typically Mean

Scandalous: Acts done in a manner that offends public decency—e.g., sexual conduct or displays of intimacy open to public view or notorious within a community. Discretion, privacy, and lack of witnesses can defeat this mode.
Cohabitation: Living together in a way resembling husband and wife (shared residence, continuity, shared expenses/domestic life). Brief, sporadic encounters usually don’t qualify as “cohabitation.”

Defenses and Strategies for a Woman Who Didn’t Know

Even though lack of knowledge is not a statutory defense, it still matters tactically and evidentially:

Knock out a required mode
- No conjugal dwelling: Show she never resided in the spouses’ marital home.
- No scandal: Emphasize privacy, lack of eyewitnesses/publicity; counter any claim of notoriety.
- No cohabitation: Demonstrate absence of shared residence or habitual living arrangement (e.g., separate addresses, sporadic meetings).
Undermine the husband’s marital proof
- The prosecution must prove a subsisting marriage (typically with a civil registry record and testimony).
Procedural bars
- No valid complaint by the wife, or the complaint fails to include both offenders while both are alive.
- Consent or pardon by the wife before filing (written, categorical, or clearly inferable from conduct). Either consent (before the acts) or pardon (after) bars prosecution; both offenders must be covered.
Good faith to mitigate
- While not a complete criminal defense, a good-faith belief that the man was single can be persuasive on sentencing, civil liability, and settlement dynamics—especially if she can show she immediately ended the relationship upon learning of the marriage.
Evidentiary discipline
- Challenge hearsay, illegal searches (e.g., messages seized without consent), and speculation about “notoriety” or “public scandal.”

Penalties and How They Play Out

Husband: Prisión correccional (minimum and medium periods). Courts can tailor the period based on circumstances (e.g., duration of cohabitation, presence of scandal).
Woman (concubine): Destierro — banishment forbidding entry into designated places (often the wife’s city or the conjugal residence) within 25 to 250 km. Violating destierro can lead to further liability.

Procedure & Prescription

Filing: Only the offended wife can initiate; the case cannot proceed on the prosecutor’s or a third party’s initiative.
Inclusion of parties: If both are alive, the complaint must be directed against both the husband and the concubine.
Prescription: As a felony punishable by a correctional penalty, the general 10-year prescriptive period applies. For discrete acts (e.g., a particular scandalous encounter), prescription counts from the wife’s discovery of that act; for continuing modes (keeping/cohabitation), from cessation or discovery of the situation.

Civil Liability Exposure (Even If Criminal Case Fails or Isn’t Filed)

The offended wife may pursue damages (e.g., moral, exemplary) under general civil-law principles on wrongful acts, dignity, and family honor.
Knowledge and intent matter much more in civil cases: a woman deceived into believing a man was single, who promptly disengaged upon learning the truth, is often viewed more leniently than one who knowingly persisted.
Civil actions can proceed independently of the criminal case and have a lower burden of proof (preponderance of evidence).

Practical Guidance for a Woman Who Truly Didn’t Know

Document good faith
- Keep records of how the man represented himself as single (messages, dating profiles, introductions to friends/family, absence of a wedding ring, etc.).
- Note the moment of discovery and your immediate steps to end the relationship.
Avoid qualifying circumstances
- Do not reside with him; do not enter the conjugal dwelling; avoid any conduct that could be construed as publicly scandalous.
If confronted, disengage
- Cease contact and do not accept support or maintenance that could look like being “kept.” Returning gifts or support and securing your own residence can be crucial optics.
Consider civil-law exposure
- Even where criminal liability is defensible, consult counsel on civil risks and settlement options, especially if the offended spouse demands damages.

Frequently Asked Questions

1) If I didn’t know he was married, am I safe from a criminal case? Not necessarily. Knowledge isn’t a statutory element for the woman in concubinage. Your best defense is to disprove the qualifying modes (no conjugal dwelling, no scandal, no cohabitation) and raise procedural bars (no proper complaint, consent/pardon).

2) What counts as “scandalous” sexual intercourse? Conduct that offends public decency—e.g., acts done in public view or notorious in the community. Private, discreet meetings are usually not “scandalous.”

3) Is one overnight stay the same as “cohabitation”? Generally, no. Cohabitation implies continuity and a shared home life. Sporadic encounters rarely qualify—though patterns (mail, bills, belongings, neighbors’ testimony) can change the picture.

4) Can the wife file against the husband only? If both are alive, the law requires that the complaint be directed against both the husband and the woman.

5) What is destierro like in practice? The court sets places you cannot enter (e.g., the city where the spouses live) and a radius (between 25 and 250 km). Violations can trigger further penalties.

6) Does a later annulment or nullity judgment erase concubinage? Generally no. The offense is assessed at the time of the acts. Later developments in marital status typically do not retroactively negate criminal liability.

Key Takeaways

Knowledge of marriage is not an element for the woman in concubinage, unlike the knowledge requirement imposed on the male partner in adultery.
Her strongest shields are factual (no conjugal dwelling, no scandal, no cohabitation) and procedural (defects in complaint, consent/pardon).
Civil liability can still arise; a documented good-faith mistake and swift disengagement can significantly mitigate risk.

This article is for general legal information within the Philippine context and is not a substitute for tailored advice on specific facts.