Adultery under Philippine Law: A Comprehensive Legal Article
This article is written for scholarly and informational purposes only. It does not constitute legal advice, nor does it create a lawyer–client relationship. Statutes and case-law cited are current to 17 July 2025.
1. Statutory Foundation and Historical Context
| Provision | Source | Key Points |
|---|---|---|
| Article 333, Revised Penal Code (RPC) | Act No. 3815 (1930), as amended by R.A. 10951 (2017) | Defines the crime, the actors, the continuing character (“each sexual intercourse constitutes a separate and distinct offense”) and the penalty (prisión correccional medium to maximum). |
| Article 344, RPC | Same | Classifies adultery as a private crime: prosecution may begin only on a sworn complaint of the offended spouse and must implead both the wife and her paramour if both are alive and both participated. |
| Article 55 (3) & 63–66, Family Code | Exec. Order 209 (1987), as amended | Adultery (or concubinage) by a spouse is a ground for legal separation ↦ property forfeiture, custody, support. |
| Articles 165–168, Family Code | — | Children conceived by an adulterous relationship are “illegitimate” with collateral effects on surnames, support, legitimation and succession. |
| Civil Code Art. 919 | — | Adultery lets a testator disinherit the offending spouse. |
Historically, Articles 333–334 are Spanish-era provisions. Attempts at repeal or gender-neutral reform (e.g., House Bills 78 & OEC-adultery-decriminalization series, 2022–2025) have not yet passed.
2. Elements of the Crime
To convict, the prosecution must establish beyond reasonable doubt:
- Status – the woman is legally married (a void or voidable marriage is treated as valid until annulled or declared void in a final judgment).
- Act – she voluntarily had carnal knowledge with a man not her husband.
- Knowledge of the Paramour – the man knew she was married.
- Complaint – only the offended spouse filed the sworn complaint and impleaded both accused. Failure to include either spouse or paramour is a jurisdictional defect (People v. Hayudini, G.R. 169850, 17 Jan 2007).
- Timeliness – filed within the 10-year prescriptive period (Art. 90 RPC) counted from the spouse’s actual discovery of each adulterous act (Art. 91). Each intercourse = one offense ⇒ prescription runs separately.
3. Jurisdiction, Venue and Bail
- Court – Because the penalty is ≤ 6 years, trial lies in the Metropolitan/Municipal Trial Court (People v. Tolentino, L-37417, 30 Oct 1974).
- Venue – Where the sexual act occurred. If several acts in different places, each act may be charged in its respective venue.
- Bail – Adultery is bailable as of right before or after arrest.
4. Penalties and Their Incidents
| Offender | Principal Penalty | Accessory Penalties |
|---|---|---|
| Married woman | Prisión correccional medium to maximum (2 years 4 months & 1 day – 6 years) | Suspension from public office, right to vote/be voted for, disqualification to hold office. |
| Paramour | Same | Same; forfeiture of family-court visitation rights to adulterous child under Art. 51 FC (case-to-case). |
Each conviction is for one act; serial adultery can result in multiple cumulative sentences (People v. Abella, L-10033, 30 May 1956).
5. Evidentiary Considerations
- Direct proof (eyewitness, CCTV, admissions, recovered correspondence) is ideal but not indispensable.
- Circumstantial evidence suffices if it forms an unbroken chain – e.g., clandestine cohabitation, room reservations, birth of a child during separation – People v. Binuya, G.R. 143891, 16 Dec 2003.
- Presumption of legitimacy (Art. 167 FC) can be rebutted only in a separate civil action; criminal courts cannot declare a child illegitimate to prove adultery.
- Self-incrimination – The accused spouse may invoke the privilege; however, marital communications privilege (Rule 130, § 24 [b]) does not extend to communications intended to conceal or facilitate a crime.
6. Defenses and Modes of Extinguishment
| Defense | Statutory / Jurisprudential Basis | Notes |
|---|---|---|
| Express or implied pardon | Art. 344 ¶ 3 RPC | Must be given before filing; may be written, oral or evidenced by voluntary cohabitation after discovery (People v. Motus, L-20089, 30 Apr 1965). |
| Death of offended spouse | Art. 344 last ¶ | Cause of extinction before judgment becomes final; if spouse dies after filing, prosecution continues (public interest). |
| Nullity of marriage | People v. Abesamis, G.R. 174596, 16 Aug 2010 | Subsequent nullity decree does not retroact to erase criminal liability because marriage subsisted in fact and in law when acts occurred. |
| Prescription | Arts. 90–91 RPC | 10 years from discovery of each act, interrupted by filing of complaint. |
| Mistake of fact | — | Rare; belief that spouse’s marriage was already annulled may negate voluntariness of the act in good faith (People v. Labus, 66 Phil. 453 [1938]). |
7. Related Criminal Offenses
7.1 Concubinage (Art. 334 RPC)
| Feature | Adultery | Concubinage |
|---|---|---|
| Offending spouse | Woman | Man |
| Acts punished | Any voluntary sexual intercourse | (a) keeping a mistress in the conjugal dwelling; or (b) cohabiting in scandalous circumstances; or (c) sexual intercourse with a woman under scandalous circumstances elsewhere. |
| Standard of proof | Ordinary criminal | “Scandalous” element requires proof of publicity and offense to morals. |
| Penalty | Prisión correccional | Prisión correccional minimum for husband but destierro (banishment) for mistress. |
| Gender critique | Seen as harsher vs. women. Reform bills aim to merge or repeal both. |
7.2 Bigamy (Art. 349 RPC)
A spouse who remarries while the first marriage subsists may be liable for bigamy in addition to adultery if sexual intercourse occurs with the second spouse (People v. Cervantes, G.R. 105749, 1 Aug 1994).
8. Civil Repercussions
| Area | Effect of Adultery |
|---|---|
| Legal separation | Art. 55 (3) FC: file within 5 years from discovery; interlocutory period of 6 months for reconciliation; guilty spouse forfeits share in community/conjugal property (Art. 63–64 FC). |
| Support & custody | Innocent spouse may obtain exclusive parental authority; adulterous spouse loses right to dwell in family home (Art. 225 [9] FC). |
| Succession | Disinheritance under Art. 919 Civil Code; also affects compulsory-share calculations. |
| Torts / civil damages | Art. 26 Civil Code recognizes a cause of action for moral damages against the paramour if acts constitute marital interference (Cariño v. Bebanco, G.R. 189105, 01 Apr 2015). |
9. Selected Jurisprudence Timeline
| Case | G.R. / Citation | Doctrinal Holding |
|---|---|---|
| U.S. v. Ah Chong | 17 Phil 526 (1910) | Circumstantial evidence may prove carnal knowledge. |
| People v. Loja | L-23725 (1968) | Each act is a separate offense; double jeopardy does not bar multiple informations. |
| People v. Ordas | L-35393 (1982) | Prescription runs from date of discovery, not commission. |
| People v. Hayudini | G.R. 169850 (2007) | Failure to implead paramour when alive is fatal; court must dismiss sua sponte. |
| People v. Abesamis | G.R. 174596 (2010) | Declaration of nullity post factum does not absolve liability. |
| Cariño v. Bebanco | G.R. 189105 (2015) | Paramour may be civilly liable for moral damages even after criminal acquittal. |
10. Gender-Equality and Policy Debates
- CEDAW Compliance – UN Committee has repeatedly urged PH to decriminalize adultery (CEDAW/C/PHL/CO/7-8, 2016).
- Pending Bills (19th Congress) – HB 78, HB 4334 propose repeal; HB 6052 seeks gender-neutral “sexual infidelity” with equal penalties.
- Arguments for Retention – Protection of marriage, deterrence; maintains moral standard.
- Arguments for Repeal – Discriminatory, outdated, clogs dockets; civil remedies suffice.
11. Practical Pointers for Practitioners and Litigants
| Scenario | Tactical Note |
|---|---|
| Client seeks to prosecute | Secure corroboration early (hotel logs, CCTV, social-media chats); obtain no-contest affidavit from paramour if possible before complaint. |
| Possible reconciliation | Document any forgiveness; an express pardon before filing is irrevocable and bars prosecution. |
| Accused paramour | Verify knowledge of woman’s marital status; ignorance in good faith may negate mens rea (rare but viable). |
| Civil strategy | A legal-separation case may run parallel; coordinate service of summons to avoid forum confusion. |
| OFW complications | Venue lies where the act occurred (abroad) ⇒ ordinarily outside PH jurisdiction unless some acts took place locally. Evidence from foreign authorities may require MLA Treaty procedures. |
12. Emerging Issues (2023 – 2025)
- Digital infidelity – Courts still require physical intercourse; “cyber-adultery” (explicit video-calls) might instead constitute VAWC psychological harm (R.A. 9262) or obscene publication (Art. 201).
- Same-sex adulterous acts – Not covered by Art. 333’s “man” element; may be prosecuted as VAWC psychological violence if woman’s lesbian partner is covered by the Act.
- RA 11596 (Prohibition of Child Marriage, 2021) – Sexual relations with a minor spouse is separately punishable; where parties are adults, adultery provisions apply unchanged.
13. Conclusion
Adultery remains a criminal offense uniquely aimed at the married woman and her paramour, carrying a medium-gravity penalty but wide-ranging civil, economic and social consequences. Procedural strictness (private complaint, impleader, pardon rules) frequently determines case outcomes more than proof of intercourse itself. While reform debates intensify, Article 333 continues to coexist with modern statutes on family, gender and cyber-crime, demanding nuanced navigation by lawyers and litigants alike.
Key Take-away: Before acting—whether to prosecute, defend or negotiate—evaluate (1) marital status at the time of the act, (2) jurisdictional prerequisites under Article 344, and (3) parallel civil remedies that may yield faster, less punitive outcomes.