Title 11 - (Art 333-346) Flashcards
333
Who are guilty of adultery
what is concubinage?
Concubinage is committed by 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 (Article 334 of the Revised Penal Code or RPC).
- keeping a mistress in the conjugal home
- having sexual intercourse under scandalous circumstances with a woman not his wife
- cohabiting with her in any other place
Elements of concubinage
- that the man must be married
- that he committed any of the acts
- regards to the woman, she must know him to be married
what is a mistress?
a woman who is taken by a man into the conjugal home as a concubine
what is conjugal dwelling
is meant as the home of the husband and wife even if the wife happens to be temporarily absent on ANY account
what is scandal?
any reprehensible word [or] deed that offends public conscience, redounds to the detriment of the feelings of honest persons [and] gives occasion to the neighbor’s spiritual damage/ruin
reprehensible - deplorable
redound - resulting to
what does ‘cohabit’ mean
means to dwell together in the manner of husband and wife for some period of time, as distinguished from occasional transient interviews for unlawful intercourse.
Hence, the offense is NOT a single act of [[adultery]]; it is cohabiting in a state of [[adultery]] which may be a week, a month, a year or longer (Pp v Pitoc)
transient - short
adultery - why??
What is adultery?
Adultery means the carnal relation between a married woman and a man who is not her husband, the latter knowing her to be married, [even if] the marriage be subsequently declared void (RPC, Article 333).
Each sexual intercourse constitutes a crime of adultery.
note
- even if it was void ab initio
elements of adultery
- the woman is married
- that she has sexual intercourse with a man not her husband.
- insofar as the man who she has sexual intercourse, he must know her to be married
adultery v. concubinage
- Adultery is committed by a wife (who must also be charged together with the other man), while concubinage is committed by a husband (who must be charged together with the concubine).
- Proof of sexual intercourse is enough in adultery, but in concubinage, the prosecution must prove that the sexual intercourse must be under scandalous circumstances, or that the husband kept a mistress in the conjugal dwelling or cohabited with her in any other place.
- The penalty for [concubinage is lower] than that of adultery (PC min-med). The penalty for the concubine is only destierro, while the penalty for the man other in adultery is the same as that of the guilty wife (PC med-max)
note
2 - the ayala case of the married man in his tinted car with the woman doesn’t constitute ‘scandalous’
What is the effect of consent or pardon by the offended spouse?
The criminal charge CANNOT prosper if the offended spouse has consented to the offense [or] pardoned the offenders. Pardon can be express or implied.
An example of express pardon is when the offended party in writing [or] in an affidavit asserts that he or she is pardoning his or her erring spouse and paramour for their act.
There is implied pardon when the offended party continued to live with his spouse even after the commission of the offense.
Pardon must come BEFORE the institution of the criminal action [and] BOTH offenders must be pardoned by the offended party.
What is bigamy?
It is defined under Article 349 of the RPC as the contracting of a second or subsequent marriage before the former marriage has been legally dissolved, [or] before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceeding.
What are the elements that must be proved in a prosecution for bigamy?
In a case for bigamy, ALL the following matters or “elements” must be shown by the prosecution:
- The offender has been legally married.
- The marriage has NOT been legally dissolved [or], in case his or her spouse is absent, the absent spouse could NOT YET be presumed dead according to the Civil Code.
- He/she contracts a second or subsequent marriage.
- The second or subsequent marriage has ALL the essential requisites for validity.
What is the effect of a pending petition for annulment or a declaration of nullity of marriage on a criminal case for bigamy?
There are two scenarios:
(1) it is argued that the FIRST marriage is null and void or is a nullity; or
(2) that the SECOND marriage is null and void.
The FIRST marriage is allegedly null and void.
In the case of Mercado vs. Tan (2000), the accused argued;
- that he already obtained a judicial declaration of nullity marriage (Article 36 of the Family Code), thereby rendering it void ab initio.
- he quoted the commentaries of former Justice Luis Reyes that “it is now settled that if the first marriage is void from the beginning, it is a defense in a bigamy charge. But if the first marriage is voidable, it is not a defense.”
The Supreme Court, in dismissing the argument of the accused, stated: In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only after complainant had filed a letter-complaint charging him with bigamy.
- By contracting a second marriage while the first was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code
That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.
The SECOND marriage is allegedly null and void.
The effect of the judicial declaration of the nullity of a second or subsequent marriage (on the ground of psychological incapacity) on an individual’s criminal liability for bigamy is a novel issue until the Supreme Court decided in the case of Tenebro vs. CA (2004)
the accused argued that;
- declaration of the nullity of the second marriage, which is an alleged indicator that the [second marriage lacks the essential requisites for validity], retroacts to the date on which the second marriage was celebrated.
- the accused then concluded that since the third and fourth “elements” of bigamy are not present, he should be acquitted.
The Supreme Court ruled that the petitioner fails to realize is that a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State’s penal laws are concerned.
As a second or subsequent marriage contracted DURING the subsistence of petitioner’s valid marriage to Villareyes(1st wife), petitioner’s marriage to Ancajas(2nd wife) would be null and void ab initio completely REGARDLESS of petitioner’s psychological capacity or incapacity simply because a marriage contracted during the subsistence of a valid marriage is automatically void
the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy.
Pertinently, Article 349 (Bigamy) of the Revised Penal Code criminalizes “any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings”. A plain reading of the law, therefore, would indicate that the provision penalizes the MERE ACT OF CONTRACTING A SECOND OR SUBSEQUENT MARRIAGE (DURING) THE SUBSISTENCE OF A VALID MARRIAGE.
Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum (legal tie) between the spouses is concerned, it is significant to note that said marriage is NOT WITHOUT legal effects. Among these effects is that children conceived or born BEFORE the judgment of absolute nullity of the marriage shall be considered legitimate.
There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences.
- Among these legal consequences is incurring criminal liability for bigamy.
- legitimacy of children born or conceived BEFORE the judgment of nullity of marriage
To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling(deceive) throngs(crowds) of hapless(unfortunate) women with the promise of futurity and commitment.
How is bigamy different from adultery/concubinage?
[adultery/concubinage]
- BOTH culprits, if both are alive, should be prosecuted [or] included in the information.
- private offenses
- crimes against chastity
- pardon will bar the prosecution of the case
- initiated by the offended party
[bigamy]
- second spouse could be charged ONLY if she/he had knowledge of the previous undissolved marriage.
- public offense
- a crime against civil status of a person (Title XII),
- no pardon
- initiated by the State
What is Acts of Lasciviousness under the Revised Penal Code?
Art. 336 — is committed by any person who shall commit any act of lasciviousness [or] lewdness upon other person of either sex, under any circumstances mentioned in the preceding article (Rape’s Circumstances), shall be punished by PC
