• Only spouse can file complaint for concubinage

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    Can I file a complaint for concubinage against my son-in-law? I learned that he is maintaining an affair with another woman and they are now living together in Bulacan. I told my daughter about it, but she does not want to take any action. She said she knew about the affair, in fact, that is the reason why they separated. She also mentioned that, a year after their separation, they executed an agreement that he will still support my daughter and their two children, while she undertakes not to file a case against him for his past indiscretion nor those which he may commit in the future. This agreement is not valid, right? So, it should also mean that a case may still be filed against him? I just want him to be held criminally responsible for his indiscretion to my daughter and their children.
    Jawo

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    Dear Jawo,
    A complaint for concubinage may not be filed by any person. It is explicitly provided for under the law that it shall not be prosecuted except upon a complaint filed by the offended spouse. Furthermore, the criminal prosecution thereof cannot be instituted without including both the guilty parties, if they are both alive. Neither can it be prosecuted if the wife shall have consented or pardoned her husband and his concubine (Article 344, Revised Penal Code). Accordingly, you cannot file a complaint for concubinage against your son-in-law. While your intention seems to be noble, such is not enough to enable you to file the complaint simply because you are not authorized by law. If there is any person who is empowered to do so, it is only your daughter, being the offended spouse.

    But this notwithstanding, it appears that your daughter is already barred from instituting the said complaint against her husband, because of the agreement which they have entered into whereby she accepted her husband’s past indiscretion, undertook not to file a case against him and even consenting to future indiscretions.

    You are correct, though, in saying that such an agreement is not valid. But the invalidity of such contract does not restore the right of the offended spouse to initiate the complaint. The Supreme Court explained that:

    “x x x No logical difference can indeed be perceived between prior and subsequent consent, for in both instances as the offended party has chosen to compromise with his/her dishonor, he/she becomes unworthy to come to court and invoke its aid in the vindication of the wrong. x x x We, therefore, hold that the prior consent is as effective as subsequent consent to bar the offended party from prosecuting the offense.

    In arriving at this conclusion we do not wish to be misconstrued as legalizing an agreement to do an illicit act, in violation of law. Our view must be taken only to mean that an agreement of the tenor entered into between the parties herein, operates, within the plain language and manifest policy of the law, to bar the offended party from prosecuting the offense. If there is anything morally condemnatory in a situation of his character, the remedy lies not with us but with the legislative department of the government. What the law is, not what it should be, defines the limits of our authority. x x x” (People vs. Schneckenburger, 73 Phil. 413)

    We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts 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 dearpao@manilatimes.net

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    1 Comment

    1. reina uriarte on

      Good Day po. Asawa lang po ba pwede mag file ng concubinage? paano po kung wla dito un asawa nasa ibang bansa tpos mga kapatid lang po ang nandito at nkakakita na niloloko ang asawa nia? ano po pwede ifile na reklamo po

      SAlamat po