Adultery and Psychological Violence Laws in Marriage in the Philippines

This article explains how Philippine criminal and protective laws treat (a) adultery/concubinage and (b) psychological violence within marriage or intimate relationships. It is general information and not legal advice.

1) The Big Picture

Two distinct legal tracks often arise from infidelity or relational abuse:
1. Crimes against chastity under the Revised Penal Code (RPC): Adultery (committed by the wife and her partner) and concubinage (committed by the husband, with different elements).
2. Violence Against Women and their Children (VAWC) under R.A. 9262: Focuses on psychological violence (mental or emotional suffering) caused by a husband/partner to a woman or her child. Marital infidelity may qualify when it causes mental or emotional anguish.
These tracks can co-exist. A single set of facts (e.g., an affair) may support:
- Concubinage against a husband and/or
- VAWC (psychological violence) if the wife suffered mental/emotional anguish.
- Adultery exists only against a wife and her paramour under the RPC.

2) Adultery (RPC, Art. 333)

Who can be liable?

Wife who has voluntary sexual intercourse with a man not her husband.
Her male partner (paramour), knowing she is married.

Key elements to prove:

A valid marriage between the complainant and the wife.
Sexual intercourse between the wife and another man.
The paramour knew of the wife’s marriage.

Important notes:

Each act of intercourse is a separate offense.
Penalty: prisión correccional in its medium to maximum periods (imprisonment within the statutory range for that penalty class).
Private crime: prosecution requires a complaint by the offended spouse, and the complaint must include both the wife and her paramour.
Consent or pardon by the offended spouse before filing the complaint bars prosecution (pardon must cover both offenders). Subsequent condonation can also be a defense.
Prescription: As a felony with a correctional penalty, the criminal action generally prescribes under the RPC’s prescription rules for correctional penalties.

3) Concubinage (RPC, Art. 334)

Who can be liable?

Husband who:
1. Keeps a mistress in the conjugal dwelling; or
2. Has sexual intercourse with a woman under scandalous circumstances; or
3. Cohabits with her in any other place.
The concubine (the woman) may also be liable (with a different penalty).

Key elements to prove:

A valid marriage between complainant and husband.
Proof of any of the three modes above (note: unlike adultery, it’s not “every sex act” but the qualifying mode that matters).

Important notes:

Penalty (husband): prisión correccional in its minimum to medium periods.
Penalty (concubine): destierro (banishment within prescribed distances).
Private crime: requires a complaint by the offended wife, and the complaint must implead both the husband and the concubine.
Consent or pardon before filing bars prosecution.
Prescription: Also subject to the RPC’s prescription rules applicable to the penalty class.

4) Psychological Violence under the Anti-VAWC Law (R.A. 9262)

Who is protected?

Women and their children (legitimate or illegitimate, minors, or those over 18 but unable to care for themselves due to disability).

Who can be held liable?

Husband, former husband, or a man who has or had a sexual or dating relationship with the woman, or with whom she has a common child.

What is “psychological violence”?

Acts or omissions causing mental or emotional suffering, public ridicule, or humiliation. Examples include threats, intimidation, stalking, repeated verbal or emotional abuse, and marital infidelity when it causes the woman mental or emotional anguish.

Elements commonly alleged in Section 5(i) (“causing mental or emotional anguish…”):

Covered relationship (spouses/partners as defined by the law).
Acts by the accused that cause mental or emotional anguish, public ridicule, or humiliation to the woman or her child.
The woman (or her child) suffered such anguish as a result (usually shown by testimony; psychological evaluation is helpful but not strictly indispensable if the testimony is credible).

Penalties and remedies:

Criminal penalties vary by the particular subsection; acts punished under VAWC range from correctional to afflictive penalties (imprisonment and fines). Courts may also order mandatory counseling/rehabilitation.
Protection Orders:
- Barangay Protection Order (BPO): Issued ex parte by the Punong Barangay, valid for 15 days, targets immediate harmful acts.
- Temporary Protection Order (TPO): Issued ex parte by the Family Court, typically 30 days (renewable until hearing).
- Permanent Protection Order (PPO): After hearing, with broad reliefs.
Reliefs may include: stay-away orders, removal of firearms, exclusion from the residence (even if the house is the respondent’s), temporary custody and support, possession of personal effects, and other measures necessary for safety.
No mediation/conciliation: VAWC cases are not subject to barangay conciliation; they proceed to court and/or protection order issuance.
Venue/jurisdiction: VAWC cases are generally filed in Family Courts (RTCs) designated for such cases; BPOs are at the barangay.
Prescription: As a special law, the prescriptive periods of Act No. 3326 apply (counted from discovery or commission, subject to tolling rules). The exact period depends on the penalty imposed for the charged subsection.

Evidentiary notes:

Standard of proof:
- Criminal conviction requires proof beyond reasonable doubt.
- Protection orders may issue on lesser standards (e.g., affidavits, testimony; TPOs can be ex parte).
Proof of anguish: The woman’s credible testimony about her mental and emotional suffering can be sufficient; psychological reports strengthen the case.
Electronic evidence (messages, emails, posts) and admissions can be used, subject to rules on authenticity and privacy.

5) Adultery/Concubinage vs. VAWC (Psychological Violence): A Comparison

Feature	Adultery (Art. 333)	Concubinage (Art. 334)	VAWC – Psychological Violence (R.A. 9262)
Who is protected	Offended husband	Offended wife	Women and their children
Who is liable	Wife + paramour (who knew of the marriage)	Husband (under any of three modes) + concubine	Husband/partner (current/former) causing psychological harm
Core conduct	Wife’s sexual intercourse with another man	Husband’s keeping a mistress at home, scandalous sex, or cohabitation elsewhere	Mental/emotional harm (threats, humiliation, marital infidelity that causes anguish, etc.)
How many counts	Each sex act is one count	Based on modes, not every sex act	Based on acts causing anguish; not per sex act
Filing requirement	Private complaint by offended husband against both wife and paramour	Private complaint by offended wife against both husband and concubine	Criminal complaint by victim; Protection Orders can be sought quickly (BPO/TPO/PPO)
Defenses	Consent/pardon before filing; lack of marriage; lack of knowledge (paramour)	Consent/pardon before filing; lack of marriage; failure to prove any mode	Lack of covered relationship; lack of causation; absence of anguish; credibility issues
Typical penalty class	Prisión correccional (medium to max)	Prisión correccional (min to med) for husband; destierro for concubine	Ranges by subsection; psychological violence is criminally punishable and can carry afflictive penalties; plus protection orders and programs

6) Civil Effects and Parallel Remedies

Family Code:
- Legal separation grounds include sexual infidelity/concubinage and physical violence or moral pressure.
- Nullity/annulment is different: grounds are not “adultery” per se (though patterns of abuse can be relevant to psychological incapacity).
Support & custody: Courts may award support and custody on an interim basis, especially in VAWC proceedings.
Damages: Civil Code Articles 19, 20, 21, 26 (abuse of rights, acts contrary to law, privacy/peace of mind) may support moral and exemplary damages for egregious infidelity or abuse, independent of, or alongside, criminal cases.

7) Practical, Procedural, and Evidentiary Pointers

For adultery/concubinage:
- Proof of marriage is indispensable.
- For adultery, prove sexual intercourse (often by circumstantial evidence: admissions, text messages, hotel/condo records, photos).
- Include both offenders in the complaint; otherwise the case is dismissible.
- Check consent/pardon issues (e.g., prior forgiveness, continued cohabitation after discovery).
For VAWC psychological violence:
- Establish the relationship covered by the statute.
- Detail the abusive acts and their impact (sleep disturbance, anxiety, depression, humiliation); keep journal entries, medical/psychological consults, and communications.
- Protection orders can be secured quickly; violations are themselves punishable.
- No mediation—safety and swift relief take precedence.
Standards of proof differ: securing a TPO/PPO is procedurally and evidentially lighter than obtaining a criminal conviction.
Double jeopardy: Filing (or acquittal/conviction) for concubinage does not bar a VAWC case (and vice versa) because the elements are different.

8) Frequently Asked Questions

Q1: Can a husband charge his wife under the Anti-VAWC law for her infidelity? No. R.A. 9262 protects women and their children. A husband cannot be the direct victim under VAWC, though he may pursue adultery (criminal) or civil remedies.

Q2: Can a wife choose between concubinage and VAWC? Yes. They address different harms. Concubinage penalizes the act of the husband under the RPC’s defined modes. VAWC punishes psychological harm to the woman/child; it can cover marital infidelity if it causes mental/emotional anguish.

Q3: Is a psychologist’s report mandatory to convict for psychological violence? Not strictly; credible testimony about mental/emotional anguish may suffice. A psychological evaluation makes the case stronger.

Q4: If the offended spouse previously forgave the adultery/concubinage, can a case still prosper? Generally no—pardon or consent before filing bars prosecution for these private crimes. (Different considerations apply to VAWC, which is not a private crime.)

Q5: Can the state file adultery/concubinage on its own? No. The offended spouse must complain, and both offenders must be impleaded.

Q6: Does every affair automatically amount to VAWC? No. The prosecution must prove that the affair caused mental or emotional anguish to the woman or her child, within a covered relationship.

9) Strategic Considerations for Victims

If immediate safety or ongoing harassment is the concern, pursue Protection Orders (BPO/TPO/PPO) under VAWC.
If the aim is to penalize marital infidelity itself, consider adultery (against the wife) or concubinage (against the husband), keeping in mind the private-crime requirements.
For long-term family outcomes, consult on legal separation, support, custody, and potential civil damages.
Prescriptive periods run; do not delay seeking counsel.

10) Quick Checklist

Adultery (wife + paramour):

☐ Valid marriage proven
☐ Sexual intercourse proven (direct or circumstantial)
☐ Paramour knew of marriage
☐ Offended husband files against both
☐ No prior consent/pardon

Concubinage (husband + concubine):

☐ Valid marriage proven
☐ At least one mode proven (mistress at home / scandalous sex / cohabitation elsewhere)
☐ Offended wife files against both
☐ No prior consent/pardon

VAWC – Psychological violence:

☐ Covered relationship (husband/partner; current/former)
☐ Acts causing mental/emotional anguish (e.g., infidelity + resulting harm)
☐ Evidence of impact (testimony, consults, messages)
☐ Consider BPO/TPO/PPO for protection and interim reliefs

Final Note

Because outcomes depend on specific facts, promptly consult a Philippine family/criminal law practitioner to assess strategy, evidence, prescription, and appropriate forums (barangay, Family Court, prosecutor).