Is this a concubinage case?

Hello:

Presuming this is under Philippine jurisdiction, there may still be a possible concubinage case against your cousin, even if they had already been living separately in fact for about two years. Under Article 334 of the Revised Penal Code, concubinage may be committed in any of these ways: a.) keeping a mistress in the conjugal dwelling, b.) having sexual intercourse under scandalous circumstances with a woman who is not the wife, or c.) cohabiting with her in any other place. The law does not require that they have a child together. The absence of a child does not defeat the case.

Secondly, the fact that your cousin and his wife were only “formally separated” in real life does not automatically erase criminal liability. Even a court decree of legal separation does not sever the marriage bond, and mere separation in fact certainly does not end the marriage. So if your cousin was still legally married at the time he lived with another woman, that part can still be used against him.

Thirdly, on your point about there being no evidence of sexual intercourse, that does not automatically kill the case either. If the wife can prove that your cousin and the girlfriend actually lived together as husband and wife in another house for some period of time, that can already fall under the third mode, cohabiting with her in any other place. The Supreme Court has explained that “cohabit” means dwelling together in the manner of husband and wife for some period of time, not just occasional meetings. So direct proof of sex is not always necessary if cohabitation can be shown by other evidence.

Fourthly, that said, the case is not automatically strong. The wife still has the burden to prove the required elements with competent evidence. If all she has is suspicion, gossip, or assumptions, that is weak. Useful evidence usually includes a.) proof that your cousin was legally married, b.) proof that he and the other woman lived together in one place as partners, such as address records, neighbors’ testimony, photos, messages, utility records, or admissions, and c.) proof that the woman knew he was married. Also, the complaint for concubinage must be filed by the offended spouse herself, and she must include both the husband and the alleged concubine, if both are alive. The law also says the case cannot proceed if she consented to or pardoned the offenders.

My practical view is this: if your cousin truly lived in one house with the girlfriend for a meaningful period while still married, then there is a real legal risk even without a child and even without direct sexual evidence. But if the wife cannot prove actual cohabitation and only knows he had a girlfriend, then the case becomes much weaker. The later breakup with the girlfriend does not erase what may already have happened before. Concubinage is punishable by a correctional penalty, and crimes punishable by correctional penalties generally prescribe in ten years from discovery, subject to interruption by filing.

If your cousin is already facing a filed complaint, the usual defense work is to check immediately whether there is real proof of cohabitation, whether the complaint properly includes both accused, whether there was prior knowledge or condonation by the wife, and whether the allegations are specific enough. Those details matter a lot.

Sincerely,

ATTY. JOFRE B. RECOSOSA
Owner/Managing Partner
Recososa Law Firm