Introduction

In the Philippines, marital infidelity remains a significant legal and social issue governed by the Revised Penal Code (RPC) and the Family Code. Adultery and concubinage are criminal offenses that address extramarital affairs differently based on gender, reflecting historical influences from Spanish colonial law. When a spouse fathers a child outside marriage, this often intersects with these crimes, triggering potential civil and criminal remedies. This article explores the definitions, elements, penalties, and available legal actions, including support obligations, nullity of marriage, legal separation, and child custody considerations, all within the Philippine legal framework.

Defining Adultery and Concubinage Under Philippine Law

Adultery (Article 333, Revised Penal Code)

Adultery is committed by a married woman who engages in sexual intercourse with a man who is not her husband. The husband or the paramour may also be held liable if aware of the woman's marital status. Key elements include:

The offender is a married woman.
She has sexual intercourse with a man not her husband.
The act is consensual (force or intimidation would classify it differently, e.g., as rape).

This offense is gender-specific, applying only to wives. The rationale stems from patriarchal views emphasizing the wife's fidelity to preserve lineage certainty.

Concubinage (Article 334, Revised Penal Code)

Concubinage applies to a married man and is committed in one of three ways:

Keeping a mistress in the conjugal dwelling.
Having sexual intercourse with a woman not his wife under scandalous circumstances.
Cohabiting with a woman not his wife in any other place.

The elements require:

The offender is a married man.
He engages in one of the above acts.
The mistress or paramour knows of his marriage.

Unlike adultery, concubinage requires proof of cohabitation or scandal, making it harder to prosecute. This disparity has been criticized for gender bias, but it remains law despite calls for reform.

When a husband fathers a child outside marriage, this often evidences concubinage if the relationship meets the criteria, such as cohabitation or scandalous intercourse. The child's birth certificate or DNA evidence can serve as proof.

Criminal Penalties and Prosecution

Penalties

Adultery: Punishable by prisión correccional in its minimum and medium periods (2 years, 4 months, and 1 day to 4 years and 2 months). Both the wife and her paramour face the same penalty.
Concubinage: Lighter penalty of destierro (banishment) or prisión correccional in its minimum period (6 months and 1 day to 2 years and 4 months) for the husband, with the mistress facing a lesser penalty or destierro.

Prosecution must be initiated by the offended spouse via a complaint, as these are private crimes under Article 344 of the RPC. The offended party cannot pardon the offenders after filing, but can before the act is public. Prescription periods apply: 15 years for adultery and 10 years for concubinage from discovery.

In cases where a child is born from the affair, the offended spouse may use this as grounds for filing, but the child's legitimacy status affects civil aspects (discussed below).

Civil Remedies: Impact on Marriage and Family

When infidelity results in a child outside marriage, criminal charges are just one avenue. Civil remedies under the Family Code (Republic Act No. 386, as amended) provide broader relief.

Declaration of Nullity or Annulment of Marriage

Adultery or concubinage can be grounds for annulment if it evidences psychological incapacity (Article 36, Family Code), a common basis since the RPC crimes demonstrate a failure to fulfill marital obligations. However:

Marriages are presumed valid; nullity requires court declaration.
Grounds include fraud (e.g., concealing a child from a prior affair at marriage time) or impotence, but infidelity post-marriage typically leads to legal separation rather than nullity.

If the husband fathers a child, the wife may petition for nullity if it reveals pre-existing incapacity. Successful nullity renders the marriage void ab initio, affecting property and child custody.

Legal Separation (Article 55, Family Code)

This is the primary remedy for infidelity. Grounds include:

Repeated physical violence or grossly abusive conduct.
Sexual infidelity (adultery/concubinage).
Attempt on the spouse's life.
Abandonment without cause for over a year.

Legal separation allows spouses to live apart without dissolving the marriage bond. Consequences:

Separation of property (unless reconciled).
Loss of guilty spouse's share in net profits from community property.
Custody of minor children typically to the innocent spouse, unless unfit.
Guilty spouse may lose parental authority.

The decree does not allow remarriage, unlike absolute divorce (not available in the Philippines except for Muslims or under specific foreign divorce recognitions).

Child Support and Legitimacy

A child born outside marriage is illegitimate unless legitimated (Article 177, Family Code). If the husband fathers such a child:

Paternity Establishment: The child can file for recognition via court action, supported by DNA tests (Rule on DNA Evidence, A.M. No. 06-11-5-SC). Voluntary acknowledgment by the father on the birth certificate establishes filiation.
Support Obligations: The father must provide support (education, food, shelter) proportional to his means (Article 194, Family Code). This is enforceable via court order, regardless of marital status. Non-payment can lead to civil or criminal liability under Republic Act No. 9262 (Anti-VAWC Act) if involving economic abuse.
Inheritance Rights: Illegitimate children inherit half the share of legitimate ones (Article 176, Family Code, as amended by RA 9255).

The offended spouse cannot disinherit the child but may challenge support if paternity is disputed.

Evidence and Procedural Aspects

Gathering Evidence

For Criminal Cases: Requires direct or circumstantial evidence of the act, such as witness testimonies, hotel records, messages, or the child's birth as corroboration.
DNA Testing: Courts may order this for paternity (Supreme Court rulings like Estate of Ong v. Diaz, G.R. No. 171713).
Digital Evidence: Under the Cybercrime Prevention Act (RA 10175), emails, texts, or social media can be admitted if authenticated.

Jurisdiction and Filing

Criminal complaints: Filed with the prosecutor's office in the place of commission.
Civil petitions: Regional Trial Court (family court) where either spouse resides.
Prescription: Civil actions for separation prescribe in 5 years from discovery.

Related Laws and Reforms

Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act)

Infidelity causing psychological violence (e.g., emotional distress from fathering a child) can be grounds for a protection order, barring the husband from the home and mandating support.

Republic Act No. 10364 (Expanded Anti-Trafficking in Persons Act)

Rarely applicable, but if the affair involves exploitation, it could intersect.

Calls for Reform

Critics argue the gender disparity in adultery/concubinage violates equality (Article II, Section 14, 1987 Constitution). Bills for absolute divorce (e.g., House Bill No. 9349) have been proposed but stalled. The Supreme Court has upheld the laws (Estrada v. Escritor, A.M. No. P-02-1651), but evolving jurisprudence may influence future cases.

Practical Considerations and Defenses

Defenses in Criminal Cases

Lack of knowledge of marriage.
No scandal or cohabitation (for concubinage).
Pardon by the offended spouse before filing.

Effects on Property Regime

Under the Absolute Community of Property (default since 1988), the guilty spouse forfeits gains. Pre-nuptial agreements can alter this.

Counseling and Mediation

Family courts encourage mediation (A.M. No. 04-2-04-SC). Reconciliation nullifies separation grounds.

Conclusion

Adultery and concubinage in the Philippines, particularly when resulting in a child outside marriage, offer the offended spouse criminal prosecution and civil remedies like legal separation and support enforcement. These laws protect marital sanctity but highlight gender inequalities. Affected parties should consult a lawyer for tailored advice, as outcomes depend on evidence and circumstances. While divorce remains unavailable, ongoing legislative efforts may modernize family law.