In the Philippine legal landscape, a spouse seeking redress against an unfaithful partner and their paramour often navigates two primary laws: the Revised Penal Code (RPC) for Concubinage and Republic Act No. 9262 (The Anti-Violence Against Women and Their Children Act of 2004).
Understanding the distinction is crucial, as the "third party" (the paramour) is treated very differently under each statute.
1. Concubinage (Article 334, Revised Penal Code)
Concubinage is a crime committed by a married man. Unlike Adultery (committed by a wife), Concubinage has specific, higher thresholds for conviction.
Elements of the Crime
To successfully prosecute a husband for concubinage, one of the following must be proven:
- He keeps a mistress in the conjugal dwelling;
- He has sexual intercourse, under scandalous circumstances, with a woman who is not his wife; or
- He cohabits (lives together) with her in any other place.
The Liability of the Third Party
The "third party" in a concubinage case is referred to as the concubine.
- Penalty: If found guilty, the husband faces prision correccional (imprisonment). However, the concubine is only penalized with destierro.
- What is Destierro? This is not imprisonment. It is a punishment where the person is prohibited from entering a designated radius (25 to 250 kilometers) of a specific place (usually the residence of the offended spouse) for a specific duration.
2. VAWC (Republic Act No. 9262)
The Supreme Court has expanded the interpretation of R.A. 9262, particularly regarding Psychological Violence. Infidelity is recognized as a form of psychological violence because it causes mental or emotional anguish, public ridicule, or humiliation to the wife.
Can a Third Party be Sued under VAWC?
This is a frequent point of legal contention. While R.A. 9262 is designed to penalize the husband or intimate partner, the Principle of Conspiracy allows the third party to be included.
- The Rule of Conspiracy: Under Article 8 of the RPC (which applies suppletorily to special laws), when two or more persons come to an agreement concerning the commission of a felony and decide to commit it, they are all liable.
- Application: If the mistress/third party willfully participates in or induces the husband to commit acts that cause psychological distress to the wife, she can be charged as a co-principal in a VAWC case.
- Jurisprudence: In the landmark case of AAA vs. BBB (G.R. No. 212448), the Court affirmed that even if the illicit act (the affair) happens abroad, if the mental anguish is felt by the wife in the Philippines, Philippine courts have jurisdiction.
3. Comparison of Legal Remedies
| Feature | Concubinage (RPC) | VAWC (R.A. 9262) |
|---|---|---|
| Focus | Violation of the marital vow/sexual act. | Protection of the woman from abuse. |
| Proof Required | Strict (cohabitation or scandal). | Psychological/emotional distress. |
| Third Party Penalty | Destierro (Banishment). | Imprisonment (if conspiracy is proven). |
| Gender Basis | Only applicable against a husband. | Only applicable against a husband/partner. |
| Pardon | A pardon by the wife bars prosecution. | A pardon does not automatically drop the case. |
4. Procedural Requirements
Filing the Complaint
- Affidavit-Complaint: The offended spouse must execute a sworn statement detailing the acts of infidelity and the involvement of the third party.
- Supporting Evidence: This includes photos, screenshots of messages, travel records, birth certificates of illegitimate children, or testimonies of witnesses who can verify the cohabitation or scandalous nature of the affair.
- Venue: * For Concubinage: Filed where any of the elements occurred (e.g., where they lived together).
- For VAWC: Filed where the victim resides or where any element of the crime occurred.
Preliminary Investigation
The complaint is filed with the Office of the City or Provincial Prosecutor. The Prosecutor determines if there is probable cause to file "Information" (formal charges) in court.
Protection Orders (VAWC only)
Unlike a concubinage case, a VAWC filing allows the wife to pray for a Protection Order (Barangay, Temporary, or Permanent). This can legally compel the husband and the third party to stay away from the wife’s home and workplace immediately, even while the criminal case is pending.
5. Key Challenges and Realities
- The "Double Standard" of Proof: Concubinage is notoriously difficult to prove compared to Adultery. Merely knowing your husband is "dating" someone is often insufficient; you must prove they are living together or acting with "scandalous" openness.
- The "Mistress Liability": While you can sue the third party, the defense often argues that the third party did not "conspire" to cause psychological violence but was merely a passive participant in a relationship. Success depends on proving the third party's intent to cause harm or their active role in the husband's abandonment of his family.
- Civil Liability: Beyond criminal cases, a wife may also file a civil case for Damages (Article 26 of the Civil Code) against the third party for meddling with or disturbing the family relations of another.