Adultery Liability While an Annulment Case Is Pending in the Philippines
(A comprehensive doctrinal and practical guide)
1. Governing Statutes
| Law | Key Provision | Relevance |
|---|---|---|
| Revised Penal Code (RPC), Art. 333 | Defines adultery as committed by a married woman who has sexual intercourse with a man not her husband, and by the latter if he knew she was married. | Core criminal rule. |
| RPC, Art. 344 | Adultery is prosecuted only upon complaint of the offended spouse and within 6 months from discovery; all guilty parties must be included. | Procedural-jurisdictional requirement. |
| Family Code of 1987 | Arts. 35–36 (void marriages) and 45–47 (voidable marriages/annulment). | Establishes that a marriage remains valid until a final judgment of nullity or annulment. |
| RPC, Arts. 89–94 | Modes of extinction of criminal liability. | A later decree of annulment/nullity is not listed among the causes. |
| Rule on Declaration of Absolute Nullity/Annulment (A.M. 02-11-10-SC) | Provides procedure and states that the decree becomes final only after entry. | Determines the exact moment the marriage bond ceases. |
2. Fundamental Doctrine: A Marriage Exists Until It Is Judicially Set Aside
The Supreme Court has consistently ruled that marriage enjoys the presumption of validity and produces all its civil and penal consequences “until annulled or declared void by a final judgment.” As early as People v. Zapata (G.R. L-17919, 29 Aug 1962) the Court held that the crime of adultery, committed while a marriage is merely voidable, remains punishable even if the marriage is later annulled.
The same doctrine was reiterated for void marriages in Abundo v. People (G.R. 218457, 10 Jan 2018): a declaration of nullity has no retroactive effect in criminal law; criminal liability attaches as long as the parties are apparently married at the time of the act.
Practical effect:
While an annulment or nullity petition is pending, the spouses remain married “for all intents and purposes” under the penal code. Engaging in sexual intercourse with a third person during that period constitutes adultery, regardless of the grounds alleged in the civil case.
3. Elements of the Offense During Pendency of Annulment
- The woman is legally married.
Status remains unchanged until issuance and finality of a decree. - She has sexual intercourse with a man not her husband.
- The man knows of her marriage.
- A valid complaint is filed by the offended spouse within 6 months of discovery and including both offenders (Art. 344).
All four elements are satisfied even if:
- The spouses are already living separately;
- A petition for annulment/nullity/legal separation is on file and even set for decision;
- The ground alleged is psychological incapacity or fraud implicating the wife’s conduct.
4. Possible Defenses and Their Probable Failure
| Invoked Defense | Why It Fails |
|---|---|
| “Marriage is void/voidable, and the petition is pending.” | The marriage is presumed valid until final judgment. |
| “I thought the marriage was already dissolved because we were separated.” | Good-faith belief in dissolution is not a statutory defense; intent is immaterial. |
| “The husband consented/condoned.” | If consent or condonation is before prosecution, it bars the filing under Art. 344; after filing, it does not extinguish liability. |
| “We executed a marital settlement waiving complaints.” | Private waiver cannot abrogate a public offense. |
5. Penalties, Prescription, and Extinction
| Topic | Rule | Notes |
|---|---|---|
| Penalty (Art. 333) | Wife: prisión correccional medium & maximum (2 years-4 months & 1 day – 6 years). Paramour: same if he knew of marriage; otherwise exempt. |
Both must be included in complaint. |
| Prescription of Crime | 10 years (Art. 90). | Runs from last adulterous act, not from filing of civil case. |
| Prescription of Action | 6 months from discovery (Art. 344). | A civil petition does not toll this. |
| Extinction | Only by death, amnesty, absolute pardon, prescription of penalty, or marriage between offenders (Art. 89). | Final decree of annulment/nullity not included. |
6. Interplay With Other Marital Offenses
| Scenario | Criminal Consequence |
|---|---|
| Husband cohabits with a concubine during pendency of annulment | May incur concubinage under Art. 334 if elements (cohabitation, scandal, or use of conjugal dwelling) are present. |
| Either spouse contracts a new marriage before decree becomes final | Constitutes bigamy (Art. 349), separate and distinct from adultery. |
7. Procedural Roadmap for the Offended Spouse
- Document the discovery (messages, photos, private investigator report, etc.).
- File a sworn complaint-affidavit for adultery with the Office of the City/Provincial Prosecutor within 6 months of discovery.
- Include both parties (wife and paramour).
- Attend preliminary investigation; failure of complainant to appear may result in dismissal.
- On finding of probable cause, Information is filed in the RTC (Family Court acting as criminal court).
- Trial proceeds; civil annulment case may continue separately but does not suspend criminal prosecution.
- Conviction/acquittal subject to appeal; if annulment is later granted, it cannot retroactively erase a conviction or pending case.
8. Selected Jurisprudence Snapshot
| Case | G.R. / Citation | Key Holding |
|---|---|---|
| People v. Zapata | L-17919 (1962) | Annulment granted after adultery does not erase liability. |
| People v. Schneckenburger | 81 Phil 33 (1948) | Good-faith mistaken belief of divorce abroad no defense. |
| Abundo v. People | G.R. 218457 (2018) | Nullity decree has no retroactive effect in criminal law. |
| Fernandez v. People | G.R. 200884 (2014) | Separate criminal and civil proceedings may run concurrently. |
| Garcia v. Drilon | G.R. 179267 (2013) | VAWC remedies are cumulative; adultery prosecution not barred. |
9. Practical Compliance Tips During Pending Annulment
- Maintain abstinence or utmost discretion; any sexual liaison risks prosecution.
- Secure written separation agreements cautiously; they do not immunize against criminal complaints.
- Monitor the six-month prescriptive period; if you are the complainant, file promptly.
- Beware of entrapment evidence (hotel registers, CCTV, digital messages).
- Consider mediation only before filing; once an Information is filed, prosecutors rarely agree to withdraw.
10. Key Take-Aways
- Status quo: The marriage bond and the corresponding duty of fidelity remain fully operative until the annulment/nullity decree becomes final.
- Adultery is a public offense prosecuted only upon private complaint, but once commenced, it is largely beyond the parties’ control.
- A favorable civil ruling (even one declaring the marriage void ab initio) does not retroactively negate criminal liability for acts done while the marriage had not yet been judicially set aside.
- Timeliness is everything: offenders cannot wait out the civil case hoping it will shield them; complainants cannot delay filing or the action will prescribe.
Disclaimer: This article is for academic and informational purposes only and does not constitute legal advice. For actual cases, consult a lawyer licensed in the Philippines.