Elements and Penalties of Concubinage under Philippine Law

1. Statutory Basis

The offense of concubinage is found in Article 334 of the Revised Penal Code (RPC), as amended. Although the RPC was enacted in 1930, Article 334 continues in force and has not been materially altered by subsequent legislation.

2. Concubinage Defined

“Any married man who, having sexual intercourse with a woman not his wife, commits any of the acts enumerated below, shall be guilty of concubinage…” (Art. 334, RPC)

Concubinage is not merely “having a mistress.” Because the law was enacted on a moral-publicity rationale—and because the husband already controls the domicile—the Legislature required aggravating circumstances beyond mere infidelity to transform the act into a crime.

3. The Three Enabling Acts

A married man is criminally liable if any one of these is proved:

Keeping a mistress in the conjugal dwelling. Keeping means habitually lodging or maintaining the paramour in the house where the spouses normally cohabit. (People v. Abainza, G.R. L-10049, 1956)
Having sexual intercourse, under scandalous circumstances, with a woman not his wife. “Scandalous” is measured by community standards of decency; it requires publicity sufficient to offend or shock observers. (People v. Santos, 68 Phil. 302 [1939])
Cohabiting with his mistress in any other place. “Cohabiting” need not be permanent, but must show a more-or-less regular life together elsewhere (e.g., maintaining a second household or staying together for extended periods). (People v. Lagasca, G.R. L-1831, 1950)

4. Elements in Detail

Element	What must be shown	Key jurisprudence
(a) Valid, existing marriage	Marriage certificate or judicial admission	People v. Vito Cruz (CA-G.R. 03932-CR, 1962)
(b) Commission of one of the 3 acts above	Direct testimony, photographs, utility bills, admissions, etc.	People v. Abainza; People v. Lagasca
(c) Knowledge and tolerance of the paramour (for venue & damages)	Prosecution is private—must be initiated by offended wife	Art. 344, RPC
(d) Complaint by the offended wife	Filed within prescriptive period (10 yrs. under Art. 90)	People v. Lim, G.R. 76791 (1990)

5. Who May File, Venue & Prescription

Initiation. Concubinage is a private crime: only the legal wife can file the sworn complaint; the State cannot act motu proprio (Art. 344, RPC).
Indispensable parties. She must implead both the husband and the concubine; failure to include either is fatal.
Venue. Where any element occurred (often the conjugal home or place of cohabitation).
Prescription. 10 years from discovery (Art. 90, as concubinage is punishable by prisión correccional).

6. Penalties

Offender	Principal Penalty	Notes
Husband	Prisión correccional minimum and medium periods (6 months + 1 day – 4 years + 2 months)	The court may fix within the 2-year spread based on mitigating/aggravating factors.
Paramour (mistress)	Destierro for the same duration	A penalty of banishment: she cannot enter within the radius fixed by the court (min. 25 km).

Accessory penalties (Arts. 40–45, RPC) attach to the prisión correccional—e.g., temporary absolute disqualification and suspension of the right to hold office or follow a profession.

7. Civil Liability

Art. 334 grants the court authority to order indemnification and damages in favor of the offended spouse, separate from the criminal aspect. The Family Code (Art. 26) also allows a subsequent foreign divorce obtained by the alien spouse to be recognized for the Filipino spouse; however, no equivalent relief exists for concubinage—the marriage remains unless annulled, nullified, or dissolved by future divorce legislation.

8. Comparison with Adultery

Feature	Concubinage	Adultery
Offender	Married man	Married woman or her male partner
Acts penalized	Only if one of 3 qualifying acts present	Every single act of intercourse
Penalty (principal)	Prisión correccional min.–med.	Prisión correccional med.–max.
Penalty for partner	Destierro	Same as woman
Underlying policy	Protects reputation & sanctity of home	Protects legitimacy of children

Scholars criticize this asymmetry as gender-biased; bills seeking to equalize or decriminalize marital infidelity have been filed but remain pending.

9. Notable Defenses

No qualifying act: Proof of sexual intercourse alone is insufficient.
Lack of publicity or scandal (Second mode).
Paramour not “kept” in conjugal home (First mode).
No cohabitation (Third mode)—isolated trysts, business trips, or temporary lodging do not constitute “cohabiting.”
Extinction of criminal liability by pardon—implicit in Art. 344: if the wife voluntarily condones after discovery and before filing, the action is barred.
Prescription: complaint filed beyond 10 years from discovery.
Nullity of marriage: If the marriage is void ab initio (but note: nullity must be judicially declared first).

10. Selected Supreme Court and Appellate Cases

Case	G.R./CA No.	Gist / Doctrine
People v. Abainza	L-10049 (1956)	“Keeping” requires habitual residence of mistress in conjugal dwelling.
People v. Jumawan	63 Phil. 49 (1936)	“This offense is consummated by the performance of one of the three acts; proof of jealousy or motive is immaterial.”
People v. Lagasca	L-1831 (1950)	Evidence of the couple’s lease of a house and joint receipt of mail sufficient for “cohabiting.”
People v. Urbano	CA-G.R. 03919-CR (1962)	Photographs and neighbors’ testimony established scandalous intercourse.
People v. Lim	G.R. 76791 (1990)	Complaint must implead both husband and mistress; otherwise dismissal is mandatory.

11. Relationship to Other Laws

Anti-VAWC Act (RA 9262, 2004). A wife aggrieved by infidelity that results in psychological violence may also sue under RA 9262 (which is gender-neutral vis-à-vis children). This is not double jeopardy; the gravamen differs (psychological abuse vs. public morality).
Anti-Photo and Video Voyeurism Act (RA 9995) may be implicated if intimate videos are recorded/shared.
Civil Code Art. 2180 (employer’s subsidiary liability) can arise if the husband uses corporate property to commit concubinage and is insolvent.

12. Procedural Pointers for Practitioners

Evidence gathering. Surveillance logs, utility bills showing residence, testimony of neighbors, or hotel receipts are common.
Sworn complaint. Must be verified and signed personally by the wife; cannot be delegated to a lawyer alone (People v. Madamba, CA).
Probable cause & warrant. No warrant of arrest against the mistress unless judicial finding supports destierro.
Bail. Bailable as a matter of right; recommend cash-equivalent of middle period of prisión correccional (Sec. 9, Rule 114).
Plea-bargaining. Some courts allow plea to unjust vexation (Art. 287) with consent of wife and prosecution.
Destierro compliance. Sheriff posts markers and the clerk informs police; violation constitutes evasion of sentence (Art. 157).

13. Criticisms and Reform Proposals

Gender Disparity. Only husbands commit concubinage, while wives commit adultery with harsher penalties.
Morality-based Criminalization. Modern scholars argue marital infidelity should be decriminalized and addressed through civil remedies (e.g., divorce, damages).
Pending Bills. Several measures (e.g., House Bill 78, 19th Congress) seek to amend Art. 333 and 334 to apply the same elements and penalties to both spouses or to repeal the offenses outright. None have yet become law (as of June 2025).

14. Key Takeaways

Concubinage is an exception-based crime: infidelity alone is not enough—one of three aggravating scenarios must exist.
Private prosecution: Only the wife can set the machinery of the State in motion, and she must sue both offenders.
Penalties differ: husband faces imprisonment; mistress is merely banished.
Civil and VAWC remedies coexist with the penal action.
Calls for reform continue, citing equality and privacy; practitioners must track legislative developments.

Prepared for scholarly and professional reference – June 2025