Adultery Complaint Options When Both Spouses Have Affairs in the Philippines A comprehensive legal guide (May 2025)

1. Legal Framework: Why “Adultery” Applies Only to the Wife, and “Concubinage” to the Husband

Crime	Governing Law	Core Element	Penalty (Revised Penal Code)
Adultery	Art. 333, Revised Penal Code (RPC)	A married woman has sexual intercourse with a man not her husband and that man knows she is married. Every act is a separate offense.	Prisión correccional in its medium and maximum periods (2 years-4 months ₋ 6 years) for both the wife and her paramour.
Concubinage	Art. 334, RPC	A married man keeps a mistress “in the conjugal dwelling,” cohabits with her elsewhere, or has sexual intercourse under scandalous circumstances.	Prisión correccional in its minimum period (6 months-2 years-4 months) for the husband; destierro (banishment) for the concubine.

Key point: Under current law, a husband can never be charged with adultery; a wife can never be charged with concubinage. When both spouses stray, they are exposed to different crimes and penalties.

2. Who May File a Criminal Case and the Special Rules That Govern It

Only the offended spouse may initiate an adultery or concubinage case (Art. 344, RPC).
The offended spouse must include both offenders (e.g., wife and paramour) if they are alive and within the Philippines.
Prescription: Five-year prescriptive period, counted per act of intercourse in adultery and from the last overt act in concubinage (People v. Toledo, G.R. No. 104377, 1995).
Pardon or condonation—express (written) or implied (resumption of marital relations)—bars prosecution (People v. Bayot, G.R. No. 117924, 1999).

3. Scenario Analysis: Both Spouses Have Affairs

Possible Action	Who Prosecutes Whom?	Practical Obstacles
1️⃣ Husband files adultery case	Husband (offended spouse) vs. wife and her lover.	He must include the lover; must show actual sexual intercourse; any prior condonation kills the case.
2️⃣ Wife files concubinage case	Wife (offended spouse) vs. husband and his mistress.	Requires proof of mistress in conjugal home or scandalous cohabitation—harder to prove than adultery.
3️⃣ Both file cases simultaneously	Each spouse becomes an accused and a private complainant in separate informations.	Highly combustible; likely to worsen conflict, expose children, and complicate settlement of property.
4️⃣ Pursue civil remedies only	Either spouse.	Legal separation (Art. 55[3], Family Code); damages for marital infidelity (Art. 26, Civil Code); support, custody, VAWC.
5️⃣ Forgo criminal cases, negotiate settlement	Both spouses.	Private settlement (Art. 344 allows withdrawal before judgment). May include property liquidation or separation-in-fact.

4. Evidence: What the Prosecutor Will Look For

Direct proof: photos, videos, chat logs arranging trysts, hotel receipts naming both parties.
Circumstantial chain: simultaneous presence in intimate setting, birth of child, admissions.
Privacy limits: secret audio recordings without both parties’ consent are inadmissible (Data Privacy Act; Anti-Wiretapping Act).
Professional investigators: allowed, but entrapment and privacy violations may backfire.

5. Criminal Procedure—Step by Step

Prepare a sworn complaint-affidavit before the Office of the City/Provincial Prosecutor.
Attach evidence and identify the co-respondent (paramour or mistress).
Preliminary investigation: counter-affidavits, clarificatory hearings; possible dismissal if evidence is weak or a pardon is shown.
Filing of Information in court → warrants or subpoenas; possible arrest (adultery is generally bailable).
Trial: each act of adultery may be charged separately; concubinage as single continuing offense.
Judgment & penalties: court may order imprisonment or destierro plus accessory penalties (e.g., disqualification to hold office).
Civil aspect: courts seldom award damages in the criminal judgment itself; a separate civil suit for moral damages is possible.

6. Consequences Outside the Criminal Sphere

Aspect	Effect of Proven Infidelity
Legal Separation	Art. 55 (3), Family Code—sexual infidelity is a ground; decree does not dissolve the marriage but ends property regime (Art. 63).
Annulment/Nullity	Adultery alone is not a ground; may serve as evidence of psychological incapacity (Art. 36, Family Code) if chronic.
Property	In legal separation, the guilty spouse loses share in ACP/CPG and may be disqualified from inheritance from the innocent spouse (Art. 63[4]).
Child Custody	Court decides on “best interests of the child.” Infidelity itself is not automatic disqualification, but scandalous behavior can influence the court (A.M. No. 03-04-04-SC).
Public Office & Employment	Criminal conviction may trigger dismissal for moral turpitude (CSC rules) or deportation for foreigners.
Violence Against Women & Children (RA 9262)	Serial adultery may constitute “psychological violence,” giving the offended wife additional civil and criminal recourse.

7. Landmark Supreme Court Decisions to Know

People v. Taño, G.R. No. L-19094 (1923) – every act of intercourse is one count of adultery.
People v. Zapanta, G.R. No. 88046 (1992) – testimony of spouses’ child can establish adulterous acts.
People v. Silvela, G.R. No. 126148 (1998) – reconciliation = implied pardon; bars further prosecution.
Chi Ming Tsoi v. CA, G.R. No. 119190 (1997) – sexual infidelity as evidence of psychological incapacity in nullity cases.

8. Strategic Considerations Before Filing

Question	Why It Matters
Do you still want the marriage?	Filing is often a point-of-no-return and may foreclose reconciliation.
What is your goal—punishment, leverage, or closure?	Criminal cases are slow (3-5 yrs) and public. Civil remedies or mediation may yield faster, quieter results.
Do you have strong evidence?	Bare suspicions will not survive preliminary investigation; losing the case can embolden the other party.
Have you condoned the affair?	Continuing cohabitation after discovery is almost always construed as implied pardon.
Are there children under 18?	Shield them; court may appoint child psychologist. Tactical choice: file claims in separate venues to minimize exposure.

9. Frequently Asked Questions

Q 1: Can we file one joint case because we both cheated? No. Each crime is distinct: the husband may be charged with concubinage, the wife with adultery. Separate Informations are required.

Q 2: What if I file adultery but forget to name the paramour? The prosecutor will dismiss or require amendment; Article 344 is mandatory on joinder of the paramour.

Q 3: Is a private settlement allowed after the case is filed? Yes—before judgment, the offended spouse may execute an affidavit of desistance; the court usually dismisses, citing the intrinsically private nature of these crimes.

Q 4: Could both of us end up in jail? Yes, if each prosecution prospers. But in practice, negotiated withdrawal or plea to destierro is common.

Q 5: Are there moves to decriminalize adultery? Several House bills (e.g., HB 4888, 19th Congress) propose repeal, but as of May 29 2025 the RPC remains unchanged.

10. Conclusion

When both spouses stray, Philippine law offers a confusing mix of gender-specific crimes, civil actions, and moral considerations. A spouse may:

Pursue criminal cases—adultery or concubinage—if motivated by retribution or leverage, accepting public exposure and stringent proof requirements.
Seek civil relief—legal separation, damages, VAWC—emphasizing protection of property and children over punishment.
Negotiate a private settlement—often the path of least resistance, especially when both are at fault.

Because every situation is fact-specific, consult a Philippine family-law practitioner before taking any step. The wrong move—such as filing without airtight evidence or after implied pardon—can turn an already painful situation into an expensive legal dead-end.