Handling Ongoing Concubinage Cases While Spouses Still Cohabitate Under Philippine Law

Scope. This article explains how concubinage is defined and prosecuted under the Revised Penal Code (RPC) of the Philippines when the legally married spouses are still living together (cohabiting). It also covers evidence issues, filing mechanics, defenses, timelines, civil and administrative remedies, and practical strategy for complainants and the accused.

1) What is “concubinage”?

Under Article 334 of the Revised Penal Code, a married man commits concubinage with a woman not his wife (the concubine) if any of the following modes is proven:

He keeps his mistress in the conjugal dwelling;
He has sexual intercourse with her under scandalous circumstances; or
He cohabits with her in any other place (i.e., lives with her as husband and wife elsewhere).

Key contrasts with adultery. Adultery (Art. 333) penalizes a married woman and her paramour for each act of sexual intercourse, and is punished more severely. Concubinage punishes the married man and his partner under narrower, mode-specific conditions and typically with a lighter penalty.

2) Why the “still cohabitating” fact matters

When spouses still reside together, Mode (1)—keeping a mistress in the conjugal dwelling—becomes central.

Conjugal dwelling means the place used by the spouses as their family residence, regardless of ownership or lease, and whether permanent or temporary.
The essence is bringing/maintaining the mistress within that residence—e.g., letting her live there, sleep there habitually, or otherwise installing her in the same home where the wife (offended spouse) lives.

If the mistress is not kept in the conjugal home, the case must fit Mode (2) (scandalous sex acts) or Mode (3) (cohabitation elsewhere). These can still happen even while spouses cohabit, e.g., the husband secretly maintains another residence.

Practical effect: For spouses who still share a home, proof that the other woman resides or is maintained in that same home is often the cleanest path to liability, without having to prove individual acts of intercourse.

3) Elements to prove (by mode)

Mode 1 — Keeping a mistress in the conjugal dwelling

The accused is legally married to the offended spouse at the time.
The woman is not his wife.
He keeps/maintains her in the conjugal dwelling (habitual presence or residence there; more than fleeting visits).

Sexual intercourse need not be proved as individual acts if “keeping” is shown; the law presumes the illicit relationship from the keeping itself.

Mode 2 — Sex under scandalous circumstances

Sexual intercourse (not necessarily habitual), plus
Scandalous circumstances—open, notorious, or indecent conduct that shocks public morals (e.g., acts done publicly or in a way that becomes a public scandal, not merely private secrecy).

Mode 3 — Cohabitation elsewhere

Living together as husband and wife in a separate residence;
Proof of shared household (e.g., same address, routines, bills, belongings), not just sporadic overnights.

4) Who can file, and against whom?

Concubinage is a private offense. Under the RPC’s rules on private crimes:

Only the offended spouse (the lawful wife) may file the criminal complaint.
She must include both offenders (the husband and the concubine) if both are alive. Filing against only one (without valid reason) is defective.
Consent (before the acts) or pardon (after the acts) by the offended spouse bars prosecution. Pardon must cover both offenders.

Implied consent/pardon? After learning of the infidelity, behavior like voluntarily resuming marital relations or continuing the relationship as before may be argued as pardon; the specifics matter and courts assess intent carefully.

5) Penalties and collateral effects

Husband (principal): prisión correccional in its minimum and medium periods (i.e., 6 months and 1 day to 4 years and 2 months), plus accessory penalties.
Concubine (partner): destierro (banishment) from the offended spouse’s residence and places she frequents within a specified radius, for a given period.

Probation may be available depending on the exact sentence imposed. Civil liability (moral, exemplary damages) may also be awarded in the criminal action if duly alleged and proved.

6) Prescription (time limits)

Crimes punishable by prisión correccional generally prescribe in 10 years.
Continuing acts (e.g., “keeping” in the conjugal dwelling or “cohabiting elsewhere”) typically prescribe from the last day the unlawful situation persisted. Each day of keeping/cohabitation extends the period.

7) Venue and procedure

Venue: ordinarily where any element occurred (e.g., the conjugal home for Mode 1; the location of cohabitation for Mode 3; the place of scandal for Mode 2).
Starting point: sworn complaint-affidavit by the offended spouse filed with the Prosecutor’s Office (Office of the City/Provincial Prosecutor).
Inquest vs. regular filing: usually regular filing (preliminary investigation), unless arrested in flagrante for another offense.
Inclusion of both offenders in the complaint is necessary (if alive).
Evidence annexes (see §8) should be attached when possible.

8) Evidence: what works (and what often doesn’t)

A. Proving “keeping in the conjugal dwelling”

Residence proof: IDs, delivery receipts, packages addressed to the mistress at the conjugal address; lease or utility records; building or subdivision gate logs; barangay certifications; neighbors’ affidavits; CCTV logs.
Household integration: personal effects/closet space, toiletries, mail, pet records, lists, digital calendars, food plans, chores—anything showing habitual, not casual, presence.
Photos/videos showing the mistress living in the house (e.g., consistent morning/night routines).

B. Proving “cohabitation elsewhere”

Shared address on deliveries/utilities; landlord or neighbors’ affidavits; CCTVs; homeowners’ logs; co-tenancy documents; shared bills; child records if applicable.

C. Proving “scandalous circumstances”

Public or openly notorious acts: public displays that reached the community; social-media posts identifying the relationship coupled with suggestive/public conduct; barangay blotters about scandal; hotel incidents observable to the public, etc.

D. Digital evidence and privacy pitfalls

Admissibility: text messages, messaging-app logs, emails, photos, and metadata may be admitted if authentic and lawfully obtained. Keep chain of custody (who captured, when, where, how).
Illegally obtained recordings (e.g., secret audio of private conversations) may violate the Anti-Wiretapping Act and be inadmissible (and criminally risky).
Home CCTV is generally admissible if lawfully installed and covers common areas; hidden mics/spyware are legally perilous.
Passwords & hacking: unauthorized access to devices/accounts can taint evidence and expose the complainant to liability.

E. Testimony

The offended spouse may testify.
Spousal testimonial disqualification generally does not apply where the crime is by one spouse against the other; however, confidential marital communications remain a sensitive area—courts carefully scrutinize whether a statement was intended to be confidential and whether any exception applies. When in doubt, build your case on non-privileged evidence.

9) Defenses (typical)

Invalid mode theory: • Mistress not kept in the conjugal dwelling (only brief visits); • No scandal (acts were private); • No cohabitation elsewhere (merely occasional intimacy without a shared home).
Consent/pardon: prior consent or subsequent pardon by the offended spouse (must be clear and voluntary; often contested).
Invalid marriage: if the husband’s prior marriage is void (e.g., lack of a valid marriage at the relevant time), the married man element fails; but voidness must be judicially determined—mere assertion is insufficient.
Evidentiary exclusion: key evidence illegally obtained or unreliable.

10) Parallel and alternative remedies (even while cohabiting)

You do not have to wait for criminal conviction to seek protective or civil relief.

Protection orders (TPO/PPO) under the Anti-VAWC Act (RA 9262)
- “Psychological violence” includes causing mental or emotional suffering, and marital infidelity can constitute such harm when it results in emotional/mental distress.
- Courts can exclude the husband from the residence, order support, bar contact, and mandate counseling—even on an interim basis.
Legal separation (Family Code)
- Sexual infidelity or perversion is a ground. Effects include forfeiture of share in profits in favor of the offended spouse (in some regimes), custody/support orders, and possible disqualification from intestate succession.
Nullity/annulment (if applicable)
- Different focus (status of marriage), not punitive; can restructure property and custody.
Civil damages (Civil Code)
- Actions for moral/exemplary damages against the erring spouse and, in appropriate cases, against the paramour under Articles 19/20/21 (abuse of rights/acts contrary to morals).
- These may be pursued independently or jointly with the criminal case (observe proper reservation of civil action rules).
Administrative & employment
- Public officers or employees may face administrative liability for disgraceful and immoral conduct; employers may have code-of-conduct consequences if acts affect workplace.

11) Strategic pathways when spouses still live together

For the offended spouse (complainant):

Document the “keeping”: unobtrusive, lawful evidence of residence/integration (see §8).
Act promptly but thoughtfully: evaluate prescription and avoid conduct that could be construed as pardon if you intend to sue.
Preserve dignity and safety: If emotional abuse is present, seek TPO; consider temporary separation for safety and to avoid mixed signals about consent/pardon.
Name both offenders in the criminal complaint (if alive) and avoid illegal surveillance.

For the accused husband and alleged concubine:

Challenge the mode (no keeping/cohabitation/scandal).
Exclude tainted evidence (wiretaps, hacked content).
If reconciliation is genuine, explore pardon (clear, unequivocal, preferably written), noting it bars prosecution only if before filing.
Consider counseling and settlement of civil claims; address support obligations.

12) Frequently asked questions

Q1: If the mistress sleeps over occasionally, is that “keeping” in the conjugal dwelling? A: Not necessarily. The law targets maintenance or installation—habitual residence, not mere sporadic visits. But repeated, routine overnights can, alongside other proof, show keeping.

Q2: Do I need to prove sex if I can show she lives in our home? A: For Mode 1, no. The keeping itself completes the offense.

Q3: We still share the same roof. Can I still file for “cohabitation elsewhere”? A: Yes, if you can prove the husband also lives with the concubine at another place as husband and wife (e.g., a second apartment). It’s fact-intensive.

Q4: What if I confronted them and he promised to stop—did I “pardon” him? A: Not automatically. Pardon must be clear and voluntary. But resuming normal marital relations after full knowledge is often argued as pardon—seek legal advice before taking steps that may be construed that way.

Q5: Can I be jailed for recording his calls? A: Secretly recording private communications may violate the Anti-Wiretapping Act. Obtain counsel before recording; prioritize lawful evidence.

13) Checklist for complainants (while still cohabiting)

Quietly inventory objective signs of “keeping” (deliveries, logs, neighbors’ notes).
Preserve digital evidence lawfully (screenshots with timestamps, metadata).
Consult counsel on TPO under RA 9262 if suffering psychological violence.
Decide early about pardon vs. prosecution; avoid mixed signals.
Prepare a complaint-affidavit that includes both offenders (if alive).
Consider parallel remedies (legal separation, support, custody).

14) Caution and closing notes

Every case is intensely factual. Courts look for specific, credible, and lawfully obtained proof that fits one of the three modes.
This article is for general information only and is not legal advice. If you are involved in a potential concubinage case—especially one that overlaps with VAWC, custody, and property issues—consult a Philippine lawyer to design a lawful, coherent strategy that protects your safety, rights, and evidence.