Adultery vs. Concubinage for Acts Committed Abroad: Philippine Criminal Law Explained

Philippine-context legal primer (as of 1 October 2025). This is general information, not legal advice.

Executive summary (quick take)

Adultery (Art. 333, Revised Penal Code) punishes a married woman who has sexual intercourse with a man not her husband, and the man who knows she is married. Each act of intercourse is a separate offense.
Concubinage (Art. 334, Revised Penal Code) punishes a married man who (a) keeps a mistress in the conjugal dwelling, (b) has sexual intercourse under scandalous circumstances, or (c) cohabits with his mistress in any other place. These are modes of committing one offense.
Territoriality rule (Art. 2, Revised Penal Code): As a rule, Philippine penal laws apply only to crimes committed within Philippine territory. ➜ Adultery/concubinage acts done abroad are generally not punishable in Philippine courts, unless they fall under narrow extraterritorial exceptions (e.g., committed on board a Philippine-registered ship or aircraft).
Private crimes & complaint requirement: Prosecution cannot begin without a sworn complaint by the offended spouse, who must include both offenders (spouse and paramour/concubine) if both are alive. Prior consent or pardon by the offended spouse bars prosecution—but only if given before the criminal case is filed.
Prescription: The 10-year prescriptive period for these offenses generally runs from discovery of the crime by the offended spouse or authorities.
Venue: Cases are filed where the offense occurred. For acts on a moving vessel/aircraft, venue may lie in any place the vehicle passed during the trip (including departure and arrival), subject to jurisdictional rules.

I. The legal bases

A. Statutory provisions

Adultery (Art. 333 RPC) Elements: (1) The woman is married; (2) She had sexual intercourse with a man not her husband; (3) The man knew she was married. Penalty: Prisión correccional medium to maximum (for both the wife and the paramour).
Concubinage (Art. 334 RPC) Elements/modes (any one suffices): A married man—
1. Keeps a mistress in the conjugal dwelling; or
2. Has sexual intercourse under scandalous circumstances with a woman not his wife; or
3. Cohabits with her in any other place. Penalty: For the husband: Prisión correccional minimum to medium. For the concubine: destierro (banishment).
Private crimes & consent/pardon (historically Art. 344 RPC; carried over in the current rules): No prosecution without the offended spouse’s complaint; if both offenders are alive, both must be included. Consent (before the acts) or pardon (after discovery but before filing) bars prosecution; it must cover both offenders.
Prescription (Arts. 90–91 RPC): Offenses punishable by prisión correccional prescribe in 10 years, counting from discovery by the offended spouse or by authorities.
Territoriality and limited extraterritoriality (Art. 2 RPC): Philippine penal laws are territorial. Crimes outside the Philippines are punishable only if they fall under defined exceptions, notably:
- On board a Philippine ship or airship;
- Certain offenses against national security;
- Crimes by public officers in relation to their functions;
- Counterfeiting/forgery of Philippine currency/securities (and related introduction into the Philippines). Adultery/concubinage do not fall into these exceptions—except when committed on board a Philippine-registered ship or aircraft.

II. What changes when the acts are committed abroad?

A. The default: No Philippine criminal jurisdiction

If all adulterous/concubinage acts occur entirely outside Philippine territory, and none of the Article 2 exceptions apply, Philippine courts lack criminal jurisdiction. The proper forum would be the country where the acts were committed—if such acts are crimes there (many jurisdictions have decriminalized consensual infidelity).

B. The critical exceptions

On a Philippine ship or aircraft If the acts occur on board a Philippine-registered vessel or aircraft, they are punishable under Philippine law despite being physically outside national territory. Venue may be laid in any place the vessel/aircraft passed during the trip, including the port/airport of departure or arrival, consistent with the Rules of Criminal Procedure on offenses in moving conveyances.
Split-location scenarios (partly abroad, partly in the Philippines)
- Adultery: Because each sexual act is a distinct offense, acts done in the Philippines are prosecutable here even if the relationship began abroad. Acts done abroad remain outside Philippine reach (save the ship/aircraft exception).
- Concubinage: If the conjugal dwelling is in the Philippines and the husband keeps the mistress there, or they cohabit in any other place within the Philippines, the offense is prosecutable here—regardless of whether the relationship started overseas. Conversely, if the cohabitation or keeping occurs entirely abroad, Philippine courts ordinarily lack jurisdiction.
Evidence from abroad Even if foreign acts themselves are not prosecutable in the Philippines, lawful evidence of those acts (e.g., admissible records, testimony) may be used as context or circumstantial evidence to prove elements of offenses committed in the Philippines. Evidence must still be lawfully obtained and admissible under Philippine rules (e.g., respect for the Anti-Wiretapping Act; authentication of foreign documents).

C. Interaction with foreign divorce or marital status changes

Status at the time of the act controls. Adultery/concubinage require that the accused spouse is married at the time of the act.
Foreign divorce: Under the Family Code (Art. 26[2]) as interpreted in jurisprudence, a foreign divorce validly obtained by the foreign spouse that capacities the parties to remarry may be recognized in the Philippines upon proper proof. Once status changes (e.g., recognition of capacity to remarry), future acts won’t meet the “married” element.
A Filipino who unilaterally obtains a foreign divorce is, as a rule, not thereby capacitated under Philippine law (absent recognized exceptions). Thus, marital status may persist for Philippine criminal law purposes unless and until a valid dissolution/recognition occurs.

D. What if there was a foreign prosecution?

A conviction or acquittal abroad generally does not bar a Philippine prosecution for acts committed in the Philippines (different sovereigns). But Philippine courts cannot try acts that occurred wholly abroad (again, unless within Article 2 exceptions).

III. Elements, proof, and common pitfalls (with cross-border twists)

A. Adultery (wife + knowing paramour)

Key proof points: Marriage; sexual intercourse (direct evidence is rare—circumstantial proof is common); paramour’s knowledge of the wife’s marriage (texts, admissions, witness testimony, circumstances).
Abroad wrinkle: Proof of acts abroad may face authentication issues; however, even if not prosecutable here, such proof can corroborate acts later committed in the Philippines.

B. Concubinage (husband + concubine)

Modes:
1. Keeping in conjugal dwelling: Requires proof that the mistress lives in the conjugal home.
2. Scandalous circumstances: Publicity or notoriety that offends community standards; not mere secrecy.
3. Cohabitation in any other place: Sustained living together outside the conjugal dwelling.
Abroad wrinkle: If the cohabitation is entirely overseas, Philippine courts typically lack jurisdiction. If cohabitation continues after their return to the Philippines, that new local cohabitation can be prosecuted.

C. Complaint, consent, and pardon

Condition precedent: No case without the offended spouse’s sworn complaint.
Both offenders included: The complaint must implead both (spouse + other party) if both are alive.
Consent/pardon bars prosecution only if given before filing of the criminal action and must cover both offenders (cannot pardon one but not the other).
After filing, forgiveness typically does not extinguish liability.

D. Counting, timing, and prescription

Adultery: Each intercourse = one count → time/place matters for venue and jurisdiction.
Concubinage: One offense, committed through any mode (keeping, scandalous intercourse, cohabitation).
Prescription: 10 years from discovery (not from the date of the act if undiscovered). “Discovery” means actual knowledge of facts constituting the offense, not mere rumor.

E. Evidence law cautions

Illegally obtained recordings (e.g., violating the Anti-Wiretapping Act) are inadmissible.
Digital evidence (messages, emails, photos) must meet authenticity and integrity requirements.
Foreign documents often require consular authentication or apostille and proper identification of the custodian or maker.

IV. Jurisdiction & venue (including moving conveyances)

General rule: File where the offense was committed.
Moving vehicles (train/aircraft/vessel): The Rules of Criminal Procedure allow filing in any place traversed during the trip, including departure and arrival points.
Philippine-registered ship/aircraft abroad: Falls under Article 2 extraterritoriality—Philippine jurisdiction attaches even if physically outside the country; venue follows the “moving conveyance” rule.

V. Strategic scenarios (illustrative)

OFW spouse, acts entirely abroad; no ship/aircraft angle. ➜ Not prosecutable in the Philippines. If the couple returns and adulterous acts occur in the Philippines, new local acts are prosecutable; foreign acts can contextualize but not themselves serve as the offenses charged.
Affair on a Philippine-registered cruise ship flying the Philippine flag. ➜ Prosecutable in the Philippines (Art. 2). Venue may be laid at the port of embarkation or disembarkation in the Philippines (or any place the vessel called at within PH), consistent with the moving-vehicle venue rule, and subject to the offended spouse’s complaint.
Husband and mistress cohabit for years in Dubai, later relocate and cohabit in Cavite. ➜ Foreign cohabitation is outside PH jurisdiction; post-relocation cohabitation in Cavite is prosecutable as concubinage (cohabitation mode).
Foreign divorce by alien spouse recognized in PH; acts occur afterward in Tokyo. ➜ If the divorce capacitated the parties to remarry and is recognized in the Philippines, the Filipino is no longer “married” for adultery/concubinage purposes after recognition; acts after recognition won’t fit the “married” element (and are abroad anyway).

VI. Penalties, civil effects, and related remedies

Criminal penalties:
- Adultery: Prisión correccional (medium to maximum) for both offenders.
- Concubinage: Prisión correccional (minimum to medium) for the husband; destierro for the concubine.
Civil effects: While adultery/concubinage are penal, they often factor into family law disputes (e.g., psychological incapacity petitions, support, custody, property relations, damages in civil actions). The place of commission (abroad vs. Philippines) affects criminal jurisdiction, but civil claims may proceed under applicable family and civil law rules, subject to proof.

VII. Practical checklist (for cross-border situations)

Map the acts: dates, places (PH vs. abroad), conveyance (Philippine ship/aircraft?).
Identify the mode: For adultery (each intercourse); for concubinage (keeping, scandalous intercourse, cohabitation).
Confirm marital status at each relevant time; note any recognized foreign divorce or annulment.
Complaint: Is the offended spouse willing to file and include both offenders? Any prior consent or pardon?
Evidence: Secure lawfully obtained, authentic proof; anticipate foreign document authentication.
Venue/jurisdiction: Choose the proper court (place of commission; moving-conveyance rule if applicable).
Prescription: Compute from discovery, not rumor.

VIII. FAQs

Q1: Can a Filipino file adultery/concubinage in the Philippines for acts done in another country that criminalizes adultery? Generally, no. Philippine criminal courts ordinarily have no jurisdiction over acts committed entirely abroad, regardless of the foreign country’s laws—unless a Philippine ship/aircraft was the situs.

Q2: What if some acts were abroad and some in the Philippines? Only the Philippine acts can be charged here (adultery: per act; concubinage: any of its modes committed locally).

Q3: Does later forgiveness kill a case already filed? No. For these private crimes, pardon must be before filing and must cover both offenders.

Q4: My spouse shows me recordings of my private calls as “proof.” Are those usable? If obtained in violation of the Anti-Wiretapping Act, they are generally inadmissible. Other lawful evidence may still be used.

Q5: If I was tried abroad for adultery, can the Philippines try me again? A Philippine case for acts committed in the Philippines is not barred by a foreign case for foreign acts (different sovereigns). Philippine courts cannot try the foreign acts (absent Article 2 exceptions).

Bottom line

Place matters. For adultery and concubinage, Philippine criminal jurisdiction turns on where the acts were committed.
Abroad = generally no Philippine case (save the Philippine ship/aircraft exception).
Local acts remain prosecutable if elements are present, complaint rules are followed, and the case is filed in the proper venue within prescription.

If you want, tell me your factual timeline (places/dates/status), and I’ll map it to the rules above and draft a clean, fact-specific analysis you can use to brief counsel.