ADULTERY CASE REQUIREMENTS IN THE PHILIPPINES
A comprehensive doctrinal and procedural guide
1. Statutory Basis and Elements
Article 333, Revised Penal Code (RPC) defines adultery as committed by:
- A married woman who
- Has sexual intercourse
- With a man not her husband, and
- The man knows she is married.
Each completed act of intercourse is a separate and distinct offense (People v. Zapanta, G.R. L-4211, 22 Nov 1951). The crime may be proved by direct or circumstantial evidence; eyewitness testimony of the act itself is not indispensable (People v. Talbot, CA-G.R. No. 24404-R, 31 Jan 1968).
2. Penalty and Ancillary Disabilities
| Classification | Duration | Notes |
|---|---|---|
| Prisión correccional, medium and maximum periods | 2 years 4 months 1 day – 6 years | Both the wife and her paramour suffer the same penalty. |
Accessory penalties under Article 42 RPC (temporary absolute disqualification and perpetual special disqualification from the right of suffrage) attach once the sentence exceeds 18 months.
Victims may also seek civil indemnity and damages pursuant to Article 345 RPC (e.g., moral damages for wounded feelings or mental anguish).
3. Who May Prosecute, How, and When
| Requirement | Governing Rule | Practical Pointer |
|---|---|---|
| Initiation by complaint | Only the offended spouse (husband) may file (Art. 344 RPC). | The Office of the Prosecutor cannot motu proprio take cognizance. |
| Indispensable joinder | The complaint must include both the wife and the paramour, if both are alive. | Failure to implead one is fatal (People v. Maceda, C.A.-G.R. No. 5871-R, 1953). |
| Consent or pardon | Express or implied consent before the first act, or pardon before institution of the action, bars prosecution. | Subsequent forgiveness after filing does not extinguish criminal liability but the spouse’s withdrawal may lead to dismissal in practice. |
| Prescriptive period | 10 years (Art. 333 RPC). The clock runs from the date of each act, not from discovery (People v. De la Cruz, 46 O.G. 3030). | File promptly; a long-running affair produces multiple counts, each with its own 10-year period. |
| Venue and court | Where any adulterous act occurred. Jurisdiction now lies with the Municipal/Metropolitan Trial Court (MTC/MeTC) because the maximum penalty does not exceed 6 years (RA 7691, 1994). | Venue is jurisdictional; wrong filing warrants dismissal without prejudice. |
Tip: The offended spouse must execute a verified sworn complaint-affidavit. If the complaint relies on circumstantial evidence (e.g., hotel receipts, text messages), attach those exhibits.
4. Evidentiary Considerations
| Point | Explanation |
|---|---|
| Best evidence is not required. | Direct eyewitness evidence is rare; courts routinely convict on strong circumstantial chains (e.g., admission by either accused, pregnancy, continuous cohabitation, hotel records, CCTV, photographs). |
| Standard of proof | Guilt beyond reasonable doubt, like any other felony. |
| Private communications | Texts or emails between the lovers are admissible if properly authenticated and not obtained in violation of the Anti-Wiretapping Act. |
| Husband’s offers to compromise | May be viewed as implied pardon if made before filing—scrutinize timing carefully. |
5. Defenses
- Mistake of fact on marital status (paramour reasonably believed the woman was single).
- Marriage declared void ab initio before the sexual acts. A mere pending nullity suit is not a defense—marriage subsists until final decree (Tolentino v. Court of Appeals, G.R. 125216, 29 Aug 2000).
- Consent/pardon proven by acts (e.g., allowing the couple to live together, friendly communications).
- Prescription—show last sexual act occurred more than 10 years ago.
- Failure to join the wife or paramour in the complaint.
6. Relationship to Concubinage
| Feature | Adultery (Art. 333) | Concubinage (Art. 334) |
|---|---|---|
| Offender | Married woman & her lover | Married man & his mistress |
| Acts penalized | Single intercourse enough | Requires (a) keeping a concubine in conjugal dwelling, (b) sexual intercourse under scandalous circumstances, or (c) cohabitation in any other place |
| Penalty | Prisión correccional (equal for both offenders) | Prisión correccional in minimum & medium periods for husband; destierro for concubine |
| Proof burden | Lighter: one act | Heavier: specific circumstances |
| Gender issues | Criticized as discriminatory; still in force pending legislative reform | — |
7. Civil and Personal Consequences
- Succession & legitimacy of children remain unaffected; adultery alone does not bastardize children born within marriage (Family Code, Art. 164).
- Separation of property may be a remedy in civil or family courts if the adulterous wife jeopardizes conjugal assets (Family Code, Art. 135).
- Ground for legal separation (Family Code, Art. 55[3]); filing a criminal case is not a prerequisite, but a final conviction creates conclusive proof.
8. Interaction with Other Laws
| Law | Connection |
|---|---|
| Anti-Violence Against Women & Children Act (RA 9262) | A wife’s lover who harasses the husband or children may incur VAWC liability separate from adultery. |
| Anti-Photo & Video Voyeurism Act (RA 9995) | Illegally obtained sex videos/pics are themselves criminal; prosecutors may refuse to use them. |
| Safe Spaces Act (RA 11313) | Public harassment or “catcalling” the adulterous pair not immune; act separately punishable. |
9. Procedure in Brief
- Draft & file sworn complaint at the Office of the City/Provincial Prosecutor where the act occurred.
- Proceed to mediation (not mandatory, but some prosecutors attempt settlement for family harmony).
- Preliminary investigation—issuance of subpoena, counter-affidavits, clarificatory hearing.
- Resolution & Information—if probable cause exists, Information is filed in the MTC/MeTC.
- Arraignment & trial—ordinary criminal procedure; the offended spouse is main prosecution witness.
- Promulgation & penalties—upon conviction, jail term; court may allow bail on appeal.
- Execution & civil award—damages collectible via writ of execution.
10. Selected Jurisprudence Quick-View
| Case | G.R. No. / Citation | Key Doctrine |
|---|---|---|
| People v. Zapanta | L-4211 (1951) | Every act is a separate felony. |
| People v. Garcia | L-6017 (1954) | Circumstantial evidence sufficient. |
| Tolentino v. CA | 125216 (2000) | Nullity suit pending ≠ defense. |
| People v. Dizon | 1203 (CA, 1946) | Ten-year prescription counted per act. |
| People v. Maceda | 5871-R (CA, 1953) | Both offenders must be charged. |
Practical Checklist for the Offended Husband
- Gather evidence early—hotel logs, chat records, eyewitnesses, private investigator reports.
- Avoid implied pardon—do not tolerate the affair or accept gifts intended to buy silence.
- File within 10 years of each proven act to preserve counts.
- Implead BOTH parties in the sworn complaint.
- Prepare emotionally—criminal prosecutions are public; marital privacy may be exposed.
Outlook & Reform
The evident gender disparity between adultery and concubinage has long been criticized as unconstitutional. While several House bills have sought to equalize penalties or decriminalize adultery entirely, none have passed as of June 18 2025. The Supreme Court in Garcia v. Drilon (G.R. 179267, 25 June 2013) acknowledged the discriminatory tilt but left rectification to Congress.
Bottom line: An adultery charge in the Philippines is a personal action resting exclusively in the offended husband’s hands. Success hinges on strict compliance with the procedural requirements of Article 344 RPC—particularly the exclusive complaint, indispensable joinder, and timely filing—paired with robust, admissible proof that sustains every distinct sexual encounter beyond reasonable doubt.