Father Fathers a Child with a Mistress: Philippine Legal Remedies, Support Duties & Adultery/Concubinage Liability
1. Key Statutes & Sources
| Area | Principal Law | Selected Rules / Case Law |
|---|---|---|
| Criminal liability | Revised Penal Code (RPC): Art. 333 Adultery, Art. 334 Concubinage | People v. Zapata (G.R. L-14764, 1962); People v. Licera (G.R. L-23138, 1968) |
| Civil‐family relations | Family Code of the Philippines (Exec. Order No. 209, 1987) | Tan-Andal v. Andal (G.R. 196359, 11 May 2021) |
| Child support & filiation | Family Code, Arts. 172-179 (filiation), 195-203 (support) ; RA 9255 (illegitimate child may use father’s surname); RA 9858/11222 (special legitimation & simulated birth rectification) | Racho v. Tanaka (G.R. 181368, 3 Feb 2014) |
| Violence against women/children (economic & psychological) | RA 9262 (VAWC Act, 2004) | AAA v. BBB (G.R. 212448, 9 Jan 2017) |
| Inheritance | Civil Code, Arts. 887-908 (legitimes) | Heirs of Don Benito Teodoro (G.R. 170140, 20 Dec 2017) |
| Property donations to mistress | Civil Code, Art. 739; Family Code, Art. 87 | People v. Tagle (G.R. 252428, 3 Aug 2022) |
| Family-court procedure | RA 8369 (Family Courts), A.M. 02-11-12-SC (provisional support) | Caballes v. DSWD (G.R. 166358, 23 Apr 2014) |
(All statutes cited are in force as of 11 June 2025.)
2. Criminal Dimension: Adultery vs. Concubinage
| Who may be charged | Core element | Penalty | Who can sue | Time limit |
|---|---|---|---|---|
| Adultery (Art. 333 RPC) – married woman & her paramour | Sexual intercourse | Prisión correccional (2 yrs 4 mo - 6 yrs); both punished alike | Only the offended husband; must include both offenders if alive | 5 yrs from discovery |
| Concubinage (Art. 334 RPC) – married man & his concubine | (a) Keeping mistress in conjugal dwelling; or (b) cohabiting with her in any other place; or (c) sexual intercourse under scandalous circumstances | Husband: Prisión correccional (min-med); Mistress: Destierro | Only the offended wife; must include both offenders if alive | 5 yrs from discovery |
Essential points
- Private crime – the State prosecutes only upon complaint of the offended spouse.
- Extinguishment – Pardon by the offended spouse before filing waives the action; condonation after filing bars conviction.
- Civil liability – In concubinage, the wife may separately sue for damages (Art. 26 Civil Code) even if criminal case fails.
- Effect on marriage – A criminal conviction does not nullify the marriage; civil remedies (next section) are still required.
3. Civil Remedies of the Legitimate Spouse
| Remedy | Statutory Basis | Filing Period | Result |
|---|---|---|---|
| Legal separation | Family Code Art. 55(3) (sexual infidelity) | Within 5 yrs from discovery | Separation of bed & board; dissolution of property regime; no remarriage |
| Declaration of nullity / annulment | Art. 35 (void), 45 (voidable) Family Code; common ground is psychological incapacity (Art. 36) | Anytime for void; 5 yrs for voidable | Marriage void/voidable; parties free to remarry after finality |
| Civil action for damages | Civil Code Art. 19 & 26 (marital privacy); Art. 2219(10) (moral damages in adultery/concubinage) | 4 yrs | Monetary compensation for mental anguish, social humiliation, etc. |
| VAWC protection | RA 9262 (economic & psychological violence) | No prescriptive period for psychological/economic abuse | Barangay/tPO/cPO; imprisonment 6 mos-6 yrs + fines; may include child support orders |
Note: A spouse may pursue both legal separation and criminal concubinage; proceedings are independent.
4. Child Born Outside Wedlock
4.1 Status, Name & Filiation
“Illegitimate child” under Art. 165 Family Code – born outside valid marriage.
Acknowledgment creates filiation (Art. 172):
- Father signs the birth certificate;
- OR executes a public instrument (e.g., notarised affidavit of acknowledgment);
- OR admits paternity in a private handwritten instrument.
Surname – RA 9255 allows use of father’s surname if he personally or through a notarised instrument consents.
DNA evidence – Rule on DNA (A.M. 06-11-5-SC) permits court-ordered testing in support/paternity actions.
4.2 Right to Support
| Point | Explanation |
|---|---|
| Legal basis | Arts. 195-203 Family Code: support is a personal and reciprocal obligation. |
| What is included | Food, dwelling, clothing, medical/dental care, education until finishing first degree, transportation. |
| Amount & standard | “[L]evel of resources of giver and necessities of recipient” (Art. 201). No fixed percentages; courts often start at 20-30 % of net income then adjust. |
| How to enforce | (a) Petition for Support (Rule 72+ Family Courts); (b) Provisional support under A.M. 02-11-12-SC; (c) Criminal or civil case under RA 9262 for economic abuse if father is married and refuses support. |
4.3 Legitimation Possibilities
| Path | Conditions | Effect |
|---|---|---|
| Arts. 177-182 Family Code (subsequent marriage) | Parents could have married at the time of child’s conception but did so only later. | Child becomes legitimate retroactively. |
| RA 9858 (parents below marrying age) | Parents were below 18 at child’s birth but later validly marry. | Same retroactive legitimation. |
| RA 11222 (simulated birth rectification) | Birth was simulated; adopter now admits and meets requirements. | Child deemed legitimate child of adopters after compliance. |
5. Inheritance and Property Issues
5.1 Compulsory Heirship
| Heir | Legitime when both legitimate & illegitimate children exist |
|---|---|
| Each legitimate child | ½ of estate, shared equally. |
| Each illegitimate child | ½ of the share of a legitimate child (Art. 895 Civil Code, as amended). |
| Surviving spouse | Same proportion as a legitimate child (Art. 892). |
Illustration Estate = ₱10 M; heirs = wife + 1 legitimate child (LC) + 1 illegitimate child (IC). • LC legitime = ₱5 M ÷ (LC + spouse) = ₱2.5 M • Spouse = ₱2.5 M • IC = ½ of LC’s share = ₱1.25 M • Free portion = ₱10 M - (2.5 + 2.5 + 1.25) = ₱3.75 M (testator may dispose)
5.2 Donations & Property Transfers to the Mistress
Void by law if:
- Art. 739 Civil Code – donation between persons guilty of adultery or concubinage.
- Art. 87 Family Code – donation by either spouse to a person with whom he/she has an illicit relationship.
The legitimate spouse (or heirs) may recover the property or its value, plus fruits, within 5 years from learning of the donation.
5.3 Community/Conjugal Property Implications
- If property was acquired with conjugal/community funds in favor of the mistress or illegitimate child, the wife may sue to reconvey her share (50 %) plus damages.
- Dissolution (legal separation/annulment) triggers liquidation; the erring spouse forfeits ½ of his share in favor of innocent spouse and children (Art. 63(2) Family Code).
6. Custody & Parental Authority
| Child’s age | Usual custody rule | Exceptions |
|---|---|---|
| 0-7 yrs | Mother is prima facie preferred (Art. 213) even if illegitimate - ensures stability. | Court may award to father for compelling reasons (e.g., neglect, abuse). |
| 7 yrs and above | Best-interest test; child’s choice given weight if above 10. | Same. |
Illegitimate child’s parental authority resides solely in the mother (Art. 176, as amended); father’s consent is still needed for passport/travel under DFA/DSWD regulations but may be dispensed with by court.
7. Administrative & Employment Consequences
Civil Service & PRC rules treat “disgraceful and immoral conduct” (open cohabitation with a mistress, or siring a child while married) as a ground for suspension or dismissal. Penalties escalate if the employee is a ranking public official or teacher (CSC Res. 99-1936; DepEd Order 49-06).
8. Typical Litigation Road-Map
Gather evidence
- Birth certificate, acknowledgment documents, social-media posts, text messages, letters, DNA results, financial statements.
Secure temporary relief
- Barangay Protection Order (BPO) or Temporary Protection Order (TPO) under RA 9262 to compel interim support & stop harassment.
File parallel actions as needed
- Support petition (Family Court) – docket support & ask for provisional support within 30 days.
- Criminal complaint – concubinage (Office of the City/Provincial Prosecutor).
- Legal separation or nullity – Family Court.
- Civil damages – Regional Trial Court/Family Court or included in family case.
Provisional measures & mediation
- Courts moderate support, may order DNA, encourage settlement on child matters.
Final judgment & execution
- Support orders enforced via garnishment of salary, levy on property, or hold-departure orders for delinquent parents.
- For criminal conviction, father may be imprisoned and ordered to support.
9. Common Misconceptions Cleared
| Myth | Legal Reality |
|---|---|
| “Illegitimate children have no rights against the father’s estate.” | They are compulsory heirs entitled to legitime (Art. 887). |
| “If the wife does not consent, the child cannot use the father’s surname.” | Wife’s consent is irrelevant; what matters is the father’s express acknowledgment (RA 9255). |
| “Criminal concubinage must be proved before one can get support for the child.” | Support obligation is independent of criminal liability. |
| “Giving monthly allowance to the mistress counts as support for the child.” | Unless clearly allocated to the child’s needs, it is treated as void donation; separate accounting is required. |
| “Only the husband is liable for concubinage.” | The mistress is a co-accused (destierro). |
10. Emerging Trends & Reforms (as of 2025)
- House Bills seek to equalize shares of legitimate & illegitimate children; none have yet passed the Senate.
- SC jurisprudence increasingly uses psychological violence under RA 9262 to award exemplary damages against philandering husbands even without conviction for concubinage (e.g., AAA v. BBB).
- E-support portals piloted in Cebu and Davao automate computation and payroll deduction for court-ordered child support, targeting nationwide rollout by 2026.
11. Practical Checklist for Parties Involved
For the Innocent Spouse
- □ Secure documentary proof (photos, bank records).
- □ Consider marital counseling or demand letter before litigation.
- □ Decide between legal separation (keep marital bond) or nullity (freedom to remarry).
- □ Preserve conjugal records to prevent fraudulent transfers.
For the Father
- □ Remember the non-waivable duty of support; settlement can mitigate criminal and civil exposure.
- □ Voluntary acknowledgment of the child simplifies custody & inheritance, but consult counsel on timing (effect on legitime).
- □ Cease donations or cohabitation to avoid further criminal acts.
For the Mistress / Child’s Mother
- □ Obtain father’s written acknowledgment (birth certificate or affidavit).
- □ File petition for support early; courts may grant provisional support within 30 days.
- □ Beware of void donations; any property given may later be clawed back.
12. Conclusion
In Philippine law, sexual infidelity that results in an out-of-wedlock child triggers three parallel legal regimes:
- Criminal (adultery/concubinage) – punishment of the illicit relationship;
- Civil-family – dissolution or protection of the marriage, plus moral and economic damages;
- Child-centred – unconditional right of the illegitimate child to support, name and inheritance, enforceable irrespective of the parents’ guilt.
While the offended spouse’s forgiveness can quash criminal prosecution, support and inheritance obligations endure for life. Because each remedy has strict time-bars and procedural nuances, parties should seek competent counsel—or risk losing rights through delay or technical missteps.
This article is for informational purposes only and is not a substitute for personalized legal advice.