Can I still file a criminal case for concubinage against my husband and his live-in partner even if we have been separated in fact for two years now?
Under our laws, married couples are obliged to live exclusively with each other under the same roof and to observe mutual love, respect and fidelity (Article 68, Family Code of the Philippines). The fact that you and your husband have not been living together for two (2) years now does not, in any way, affect the validity of your marriage. As such, you are still bound by all the rights and obligations between husband and wife. Hence, neither of you can legally cohabit with, nor enter into another relationship with other persons.
The act of your husband in cohabiting with another woman may make him and his partner liable for the crime of concubinage defined and penalized under Article 334 of the Revised Penal Code (RPC), to wit:
“Article 334. Concubinage. – Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.
The concubine shall suffer the penalty of destierro.”
You may file a criminal complaint for concubinage against your husband and her mistress before the Prosecutor’s Office of the place where they are living together as husband and wife. To successfully prosecute them for the crime, you need to prove the following elements: 1) the man must be married; 2) that he committed any of the following acts: a) keeping a mistress in the conjugal dwelling: b) having sexual intercourse under scandalous circumstances with a woman who is not his wife; c) cohabiting with her in any other place; 3) as regards the wife, she must know him to be married (Luis B. Reyes, The Revised Penal Code, Book Two (13th Edition), page 770). It should be noted, however, that you cannot prosecute your husband and his mistress for the crime of concubinage if you have consented to the commission of the same or have pardoned both your husband and his mistress for their act (Article 344, RPC).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com