Withdrawing a Concubinage Case in the Philippines: Legal Effects and Alternatives

For educational purposes only. This article explains concubinage under Philippine law, what “withdrawing” a case actually does at different stages, and practical alternatives—both legal and non-litigation—available to the offended spouse.

1) Concubinage in a Nutshell

Governing law. Concubinage is punished under the Revised Penal Code (RPC), Art. 334 (crimes against chastity). It is a “private crime,” meaning prosecution cannot begin without a complaint from the offended spouse (the lawful wife).

Who can be accused.

Husband (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 place.
Concubine (the woman) is also liable, but with a different penalty.

Penalties (typical).

Husband: prisión correccional in its minimum to medium periods (generally 6 months and 1 day up to 4 years and 2 months).
Concubine: destierro (banishment from a specified radius around the offended spouse’s residence) for a period corresponding to the principal penalty.

Essential elements to prove.

A valid, subisting marriage between the complainant (wife) and the accused husband at the time of the acts.
Any of the three acts above (mistress in conjugal home, scandalous intercourse, or cohabitation).
Scandalous circumstances are required only for the “sexual intercourse” mode—not for “keeping in the conjugal dwelling” or “cohabitation.”

Special rules unique to concubinage/adultery.

Only the offended spouse may file the complaint.
The complaint must implead both the husband and the concubine (if both are alive).
Consent or pardon by the offended spouse bars prosecution—but only if given before the criminal action is instituted.

Prescription.

As a rule for penalties in the prisión correccional range, criminal liability generally prescribes in 10 years.
For private crimes, jurisprudence treats discovery by the offended spouse as pivotal for computing prescription; prompt action is strongly advisable.

2) “Withdrawal” Can Mean Different Things—Stage-by-Stage Effects

The impact of “withdrawing” depends entirely on where the case is in the criminal process.

Stage A — Before Filing Any Complaint (pre-prosecutor)

What “withdrawal” means: Simply don’t file. Or cease a preliminary blotter complaint and do not proceed.
Effect: No case exists. Because concubinage is a private crime, the State cannot validly prosecute without the offended spouse’s complaint.

Stage B — Complaint with the Prosecutor, Before the Information Is Filed in Court

What “withdrawal” means: The complainant submits a Motion to Withdraw Complaint or an Affidavit of Desistance to the prosecutor.
Effect: In most instances, the prosecutor dismisses for lack of a required party’s complaint, or for lack of interest/evidence.
- If the offended spouse also issues a pardon (express or implied) at this stage, that bars prosecution outright.
- If the evidence is overwhelming and the offended spouse is merely “desisting,” prosecutors may still technically investigate; but without the indispensable complaint, filing an information is generally not proper.

Stage C — After the Information Is Filed in Court (post-filing, pre-arraignment)

What “withdrawal” means: Filing an Affidavit of Desistance and a Motion to Dismiss (usually via the public prosecutor).
Effect: The case does not automatically end. Once in court, crimes are matters of public justice. However:
- Courts often consider desistance alongside a valid pre-filing pardon or obvious evidentiary gaps (e.g., the complaint failed to implead the concubine). In such scenarios, dismissal is common.
- If no valid bar exists (e.g., the “pardon” came after filing), the judge may still deny dismissal and continue proceedings if probable cause and evidence exist.

Stage D — After Arraignment / During Trial

What “withdrawal” means: Affidavit of Desistance, testimony recantation, or non-appearance.
Effect: Typically no automatic dismissal.
- The court may treat a recantation cautiously (recantations are deemed unreliable).
- Prosecutors can proceed using other admissible evidence (e.g., witnesses, documents, proof of cohabitation, photos, admissions).
- If the offended spouse refuses to testify and her testimony is indispensable, the case may weaken and be dismissed for failure of prosecution. But this is case-specific and discretionary.

Stage E — After Judgment

What “withdrawal” means: Settlement or “forgiveness” after conviction.
Effect: No extinguishment of criminal liability by mere pardon from the offended spouse (unlike civil claims). Post-judgment remedies are governed by the RPC on extinction of penalties (e.g., service of sentence, amnesty, probation where allowed), not private forgiveness.

3) Pardon vs. Desistance vs. Compromise—Know the Differences

Consent or Pardon (by the wife)
- Timing is everything. If before filing the criminal action, it bars prosecution.
- If after filing, it generally does not extinguish criminal liability, though it may support a motion to dismiss at the prosecutor or court’s discretion.
Affidavit of Desistance
- A declaration that the complainant no longer wishes to prosecute.
- Not binding on prosecutor or court; at best, persuasive.
Compromise
- Crimes cannot be compromised. Any private settlement does not by itself terminate the case, except where the law specifically allows (concubinage is not one of them).

4) Practical Grounds That Lead to Dismissal (Common Pitfalls)

Failure to implead both accused (husband and concubine), when both are alive.
Lack of a valid offended-party complaint (signature/authority issues).
Evidence fails to meet the mode pleaded (e.g., “scandalous” circumstances not proven for the intercourse mode; or no proof the mistress actually resides in the conjugal dwelling).
Prescription (late filing measured from discovery).
Invalid marriage proof (if the marriage was void from the start and no good faith belief of a valid marriage exists, the “husband” element collapses).

5) Civil and Administrative Consequences—Even If You Withdraw

Civil damages under Articles 19, 20, or 21 (abuse of rights, tort) may still be pursued separately, regardless of criminal withdrawal, if the facts fit.
Support and property rights between spouses remain enforceable through civil actions (e.g., support pendente lite, accounting of property, injunctions).
Employment/Administrative actions: If the husband is a public officer or subject to a company code of conduct, administrative cases may proceed on their own standards of proof.

6) Alternatives to a Concubinage Prosecution

Many spouses prioritize protection, property, and forward-looking remedies over punishment. Consider the following, alone or in combination:

A. Legal Separation

Ground: Sexual infidelity is a statutory ground.
Effects: Dissolution of property relations (separation of property), forfeiture of the offending spouse’s share in favor of common children (as may apply), custody/support orders, disqualification to inherit from each other by intestacy, and other protective measures.
Marriage bond remains (no right to remarry).

B. Declaration of Nullity or Annulment

Grounds: Psychological incapacity (Art. 36), lack of essential formal requisites, vitiated consent, and others depending on facts.
Effects: Marriage declared void or voidable; allows remarriage once final. Property and custody/support issues are adjudicated.

C. Protection Orders under the Anti-VAWC Law (RA 9262)

If the acts amount to psychological, emotional, or economic abuse, a VAWC case and protection orders (TPO/PPO) may be sought, with swift, practical reliefs (stay-away, custody, support, residence exclusion).

D. Independent Civil Actions

Damages for humiliation, mental anguish, and similar injuries (Art. 2219/2220 Civil Code) may be viable even without or after a criminal case, subject to proof.

E. Mediation or Therapeutic Agreements

While criminal liability cannot be compromised, spouses can privately agree on custody, support, schooling, asset arrangements, counseling, boundaries, and communications—often memorialized in a court-sanctioned agreement within a family case.

7) Strategic Considerations Before You Withdraw

Clarify your objective. Do you want accountability, protection, property relief, or to move on? The best path differs.
Time the pardon carefully. If you intend to forgive and avoid prosecution, do it before filing any criminal complaint.
Secure parallel remedies. Even if withdrawing, file for support, custody, or property protection where appropriate.
Preserve evidence. If you might re-file (within prescription), keep originals: messages, photos, tenancy records, travel logs, financial trails.
Avoid extortion optics. Do not tie withdrawal to money in a way that appears to sell criminal leniency; keep settlements to civil terms (support, property, parenting plans).
Mind perjury and data privacy. Affidavits must be truthful and compliant with data-privacy rules when attaching screenshots or third-party data.

8) How to Document a Withdrawal (Templates)

Affidavit of Desistance (sample points)

I am the lawful wife of [Name], married on [date/place], as per [proof].

I previously filed a complaint for concubinage docketed as [I.S. No. / Criminal Case No.].

After reflection, I no longer wish to pursue criminal charges. This is voluntary, without coercion, and I understand its consequences.

I respectfully request dismissal/termination of the complaint.

(If applicable) I also extend pardon/forgiveness to the respondents for purposes of Art. 344 (state clearly when the pardon is being given).

Pardon (if intended to bar prosecution)

Use clear, express language stating you consent/pardon the acts before any criminal action is filed; specify dates to avoid ambiguity.

Execute and submit prior to filing or, if already with the prosecutor, before the information is filed in court.

Motion to Withdraw Complaint / Motion to Dismiss (prosecutor stage)

Attach the Affidavit of Desistance (and Pardon, if intended).

Cite private-crime nature and indispensability of the offended spouse’s complaint.

Motion to Dismiss (court stage)

Coordinate with the public prosecutor; attach desistance/pardon; raise any fatal defects (e.g., non-joinder of the concubine), prescription, or lack of scandalous circumstances for the pleaded mode.

9) FAQs

Q: If I withdraw after the case is in court, is it over? A: Not automatically. Judges may still proceed if evidence supports guilt. Desistance is persuasive, not controlling—unless there’s a legal bar (e.g., valid pre-filing pardon, fatal complaint defects).

Q: Can I refile later if I withdraw early? A: Yes, if still within the prescriptive period and no valid pardon was given that would bar refiling.

Q: What if I only want property and support secured? A: Consider legal separation or a civil action for support/property, or VAWC protection orders if abuse is involved. These can deliver faster, targeted relief.

Q: Is “scandalous” required in all cases? A: Only for the “sexual intercourse under scandalous circumstances” mode. It is not required for keeping a mistress in the conjugal home or for cohabitation elsewhere.

Q: Do I need to sue the other woman too? A: Yes, if she is alive, both the husband and concubine must be included in the complaint for the case to prosper.

10) Action Checklists

If you plan to withdraw:

Decide whether to pardon (and its timing).
Prepare Affidavit of Desistance (and Pardon, if any).
File with the prosecutor (if still there) or the court (if already filed), via the public prosecutor.
Safeguard copies of all filings and proof of service.

If you prefer alternatives:

Assess legal separation vs nullity/annulment.
If abuse is present, seek VAWC protection orders.
File for support/custody/property measures as needed.
Consider mediation for a parenting/property plan.

11) Bottom Line

Before filing, your pardon or decision not to file will generally bar a concubinage case.
After filing, an Affidavit of Desistance does not automatically end the case; courts may still proceed if the evidence stands.
If your goals are safety, support, and financial stability, family-law remedies (legal separation, nullity, VAWC protection, civil damages) often deliver more practical, durable outcomes than a purely penal route.

Consider consulting counsel to align timing (especially of any pardon), evidence strategy, and parallel family-law remedies with your specific facts.