Adultery as a Crime in Philippine Law — A Comprehensive Guide
1. Statutory Anchor
Article 333, Revised Penal Code (RPC)
“Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband, and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void. Each sexual act constitutes a distinct crime.”
Because the act is specifically covered by the RPC, it remains a felony (delito) despite contrary moral or religious notions and notwithstanding calls for repeal.
2. Elements
- Marriage of the woman (valid or voidable; a void marriage still qualifies until a court annuls it).
- Sexual intercourse (carnal knowledge; proof may be circumstantial).
- Identity of the male paramour who knew or should have known the woman was married.
- Lack of consent or condonation by the offended spouse (see Art. 344, RPC).
Every separate act of intercourse = one count of adultery. A six-month affair can mean dozens of informations if the prosecution wishes.
3. Who May Sue, and How
| Procedural Point | Rule |
|---|---|
| Complaint-initiator | Only the offended spouse (husband). The State cannot act motu proprio (Art. 344). |
| Indispensable parties | The complaint must include both the wife and her paramour if both are alive. |
| Barangay conciliation? | Not a prerequisite; adultery is exempt from the Katarungang Pambarangay Law. |
| Venue | Where any act of intercourse occurred (People v. Tolentino, G.R. 45973, 1939). Multiple venues possible. |
| Consent vs. Pardon | Consent (prior approval) or pardon (post-fact) by the husband, if express or implied and given before complaint, bars prosecution. Silence alone is not pardon. |
| Prescription | Ten (10) years from the date of commission, interrupted by discovery if the offense was concealed (People v. Arbiso, G.R. L-19389, 1922). |
4. Penalty and Collateral Sanctions
Principal penalty: Prisión correccional medium and maximum Range: 2 years 4 months 1 day – 6 years. The court may divide the sentence for separate acts.
Accessory penalties (Arts. 42–45, RPC): temporary absolute disqualification and perpetual special disqualification from the right of suffrage, plus civil interdiction during service of sentence.
Bail: Bailable as a matter of right before conviction.
5. Civil & Family-Law Repercussions
| Sphere | Effect |
|---|---|
| Civil Code Art. 26, 220, 2219 | The innocent spouse may sue for moral and exemplary damages. |
| Support & Property Regimes | Misconduct is a ground to revoke donations (Art. 739); may influence forfeiture under Art. 129(9) FCP if marriage is annulled. |
| Nullity / Annulment | Adultery itself is not a ground, but repeated unfaithfulness may constitute psychological incapacity (Art. 36, FCP) or prove sexual infidelity in annulment under Art. 45(5). |
| Legal Separation | Positive ground under Art. 55(3), Family Code; must be filed within 5 years of discovery. |
| Custody | Courts weigh parental suitability; adultery alone doesn’t automatically deny custody. |
| Succession | No automatic disinheritance, but Art. 919(6) allows disinheritance of a spouse for “abandoning or making life unbearable” in certain circumstances. |
6. Key Jurisprudence
| Case | Take-away |
|---|---|
| People v. Zapanta (CA-G.R. 03766-R, 1954) | Exactly who performed penetration need not be proven if circumstantial evidence is “moral certainty.” |
| People v. Rivera (G.R. 146481, 30 Jan 2007) | Paramour’s knowledge may be presumed if the woman cohabited openly as married. |
| Garong v. People (G.R. 170375, 14 Mar 2012) | Each act is a distinct offense; double jeopardy attaches only per act. |
| People v. Stoffregen (G.R. 126642, 23 June 2000) | Foreign paramour within PH territory still liable; citizenship irrelevant. |
| AAA v. BBB (A.C. 5339, 26 June 2006) | Adultery may inflict psychological violence punishable under RA 9262 if it causes mental anguish to the wife—illustrating overlap yet distinct liabilities. |
7. Concubinage vs. Adultery: Unequal Twins
| Aspect | Adultery | Concubinage (Art. 334) |
|---|---|---|
| Offending spouse | Wife | Husband |
| Required act | Any intercourse | Must be (a) under scandalous circumstances; (b) cohabitation; or (c) intercourse with a mistress in conjugal home |
| Penalty | Same for both guilty parties | Husband: prision correccional minimum; paramour: destierro |
| Proof difficulty | Easier; single act suffices | Harder; needs qualifying circumstance |
| Criticisms | Gender bias in initiator of action; equal-protection issues | Lighter penalty for husband’s paramour |
The disparity fuels current reform bills (see infra).
8. Defenses & Mitigating Scenarios
- Prior consent or subsequent pardon by the husband.
- Void marriage decree obtained before the adulterous act (post-facto decree does not absolve).
- Lack of paramour’s knowledge that the woman was married.
- Extinguishment by prescription (10 years).
- Death of complainant spouse after filing does not dismiss the case; the People inherit the action (People v. Ayson, 121 Phil 116 [1965]).
- Amnesty or pardon by the State (rare).
9. Overlap with Other Statutes
- Violence Against Women & Children Act (RA 9262) – Adulterous affairs causing emotional distress may constitute psychological violence; independent liability.
- Anti-Photo/Video Voyeurism Act (RA 9995) – If illicit encounters are recorded.
- Cybercrime Act (RA 10175) – Online liaisons or publication of affairs may add cyber-libel or identity theft components.
10. Legislative Reform Landscape (as of June 2025)
| Proposal | Status | Core Idea |
|---|---|---|
| HB 78 / SB 245 (2022) | Pending in House & Senate justice committees | Decriminalize both adultery & concubinage; treat as civil wrong. |
| SB 147 (2023) | Pending | Equalize penalties, allow either spouse to complain. |
| Divorce Bills | Approved on third reading in House (May 22 2024); pending in Senate. A divorce law would not automatically repeal Art. 333 but may reduce practical filings. |
Until an amendatory law passes, adultery stays in the penal statute books.
11. Practical & Ethical Considerations for Practitioners
- Case Selection: Criminal adultery is often filed tactically to gain leverage in property settlement or child custody; counsel must assess bona fide intent vs. harassment.
- Evidence Gathering: Private investigators, text messages, hotel receipts, and eyewitnesses form circumstantial proof but must clear chain-of-custody hurdles.
- Plea Bargaining: Parties commonly agree to civil damages, withdrawal of complaint, or seek amparo de derecho; yet withdrawal after filing does not automatically terminate prosecution.
- Human-Rights Angle: International bodies (CEDAW Committee recommendations, 2016 & 2020) urge repeal due to discriminatory effect; lawyers may raise constitutional challenges on equal-protection grounds, but none has prospered at the Supreme Court to date.
12. Frequently Asked Questions
Does reconciliation bar the case? Only if it amounts to a valid pardon before filing. A kiss-and-make-up after arraignment will not abate prosecution.
Can the wife sue for concubinage in retaliation? Yes. Concubinage requires different elements; both cases may proceed simultaneously.
What if the husband lives abroad? He may execute a verified complaint-affidavit abroad and file through a representative (Sec. 12, Rule 110) provided personal verification is proven.
Is arrest in flagrante possible? No; adultery is not among “continuing crimes” allowing warrantless arrest unless committed in the officer’s presence.
13. Take-Away
Adultery under Article 333 remains a potent—if controversial—private offense enforced only at the aggrieved spouse’s behest. Its practical strength lies less in imprisonment (rarely imposed to full term) and more in leverage for property, custody, and moral vindication. Until Congress acts, lawyers, clients, and advocates must navigate its substantive requisites, procedural traps, and evolving gender-equality critiques with precision.
Prepared: 1 June 2025, Manila