(Adultery/Concubinage Basics in the Philippine Setting)

Yes—sometimes. In the Philippines, a spouse may file a criminal case that names the third party (often called a “mistress” or “paramour”), but only through specific crimes and under strict rules. The two classic criminal cases connected to marital infidelity under the Revised Penal Code are:

Adultery (typically involves a married woman and her sexual partner), and
Concubinage (typically involves a married man and his mistress under particular circumstances).

These are often misunderstood. Many complaints fail not because infidelity didn’t happen, but because the legal elements are narrow and the filing requirements are strict.

1) Big picture: Who can sue whom?

Criminal cases (Adultery / Concubinage)

Only the “offended spouse” (the spouse betrayed) can file the criminal complaint.
The complaint generally must include BOTH participants in the affair (the spouse and the third party), if both are alive.
These crimes are treated as private crimes: the State does not begin prosecution unless the offended spouse complains.

Civil cases (damages)

A spouse may try to claim damages, often as part of the criminal case (civil liability arising from crime).
Standalone civil suits purely for “being a mistress” are not as straightforward; success depends on the specific wrongful acts proven and the legal basis used (and outcomes can vary).

Practical point

If the evidence doesn’t fit adultery/concubinage, some spouses explore other legal remedies (discussed below), such as legal separation or (for wives) VAWC for psychological violence due to marital infidelity.

2) Adultery (Revised Penal Code, Art. 333)

Who can be charged?

The married woman, and
The man who had sexual intercourse with her, provided he knew she was married.

Elements (what must be proven)

To convict, the prosecution generally must prove beyond reasonable doubt:

The woman is legally married; and
She had sexual intercourse with a man not her husband; and
The man knew she was married.

Key notes

Sexual intercourse is required. Flirty messages, hotel bookings, “sweetheart” chats, or public closeness may show a relationship, but adultery requires proof of the sexual act.
The affair can happen anywhere; the place is not an element.
Attempting to charge only the third party is usually barred—the complaint must include both offenders if both are alive.

Penalty (general)

Both offenders face prisión correccional (a correctional penalty). Courts determine the exact duration based on law and circumstances.

3) Concubinage (Revised Penal Code, Art. 334)

Concubinage is not simply “a married man cheated.” It’s narrower.

Who can be charged?

The married husband, and
The mistress, typically when she knew he was married and participated in the qualifying circumstances.

Elements (what must be proven)

The husband commits concubinage if he:

Keeps a mistress in the conjugal dwelling (the marital home), OR
Has sexual intercourse under scandalous circumstances, OR
Cohabits with the mistress in any other place.

Why many concubinage cases fail

Because it’s not enough to show an affair. The law requires one of the specific circumstances above, and these can be hard to prove. For example:

If the relationship is secret and intermittent, and there’s no cohabitation or “scandalous circumstances,” the case may be weak.
“Scandalous circumstances” is fact-specific; it usually implies public, offensive notoriety beyond mere rumor.

Penalties (general)

The husband faces a correctional penalty (generally prisión correccional at a lower range than adultery).
The mistress often faces destierro (banishment / prohibition to enter specified places within a radius), not imprisonment—this surprises many people.

4) Who can file and how filing works (the strict rules)

Only the offended spouse can initiate

Adultery and concubinage prosecutions cannot be started by:

Parents,
Siblings,
Children,
Friends,
The police (on their own), or
Any third party.

Must include both offenders

As a rule, the offended spouse must file against:

Both the spouse and the paramour, if both are alive.

You generally cannot pick and choose (e.g., “mistress only” or “husband only”), because the law aims to prevent harassment or selective prosecution.

Consent and pardon can bar the case

The offended spouse may be barred from filing if there was:

Consent (explicit approval of the affair), or
Pardon (forgiveness), which can be express or sometimes implied by conduct.

This is intensely fact-based. Reconciliation, continued cohabitation, and behavior after discovering the affair can become issues the defense raises.

Timing (prescription)

These crimes have prescriptive periods (deadlines). In general, crimes punished by correctional penalties commonly have a longer prescription period, but the exact computation can depend on facts (when the act occurred, whether the offense is treated as continuing, interruptions by filing, etc.). If a spouse is considering filing, do not delay—timing defenses are common.

5) Evidence: What typically matters (and what doesn’t)

What must be proven

Marriage: usually proven through a marriage certificate or official records.
Identity of offenders: clear identification of the spouse and the third party.
The qualifying act:
- For adultery: proof of sexual intercourse.
- For concubinage: proof of conjugal dwelling / scandalous circumstances / cohabitation, plus sexual relations tied to those circumstances.

Common evidence used (often circumstantial)

Admissions (messages can help, but courts evaluate authenticity and context).
Witness testimony (neighbors, household staff, security guards, etc.).
Hotel records, travel records, photos/videos (lawfully obtained).
Proof of cohabitation: lease contracts, shared bills, barangay certifications, mail addressed to both at one residence, etc.
Social media posts showing living arrangements or public notoriety.

Important cautions

“Screenshots” alone can be attacked. Authentication issues (who sent it, whether altered) are common.
Illegal evidence-gathering can backfire. Intrusive acts (breaking into accounts, unlawful recording in certain contexts, trespass) can create criminal/civil exposure or weaken credibility.
Motive isn’t enough. A strong suspicion is not proof beyond reasonable doubt.

6) Can you file a case “against the mistress only”?

Generally, no. For adultery/concubinage, the offended spouse is typically required to include both the cheating spouse and the third party, if both are alive.

If what you want is to hold only the third party accountable while sparing your spouse, adultery/concubinage usually won’t work as designed.

7) What if the cheating spouse is overseas or missing?

This becomes procedural and practical:

If one accused cannot be arrested or arraigned, cases can stall.
Courts may require proper jurisdiction over the accused.
The requirement to include both parties still matters; you can’t usually proceed as if the other person doesn’t exist if they are alive and identifiable.

A lawyer typically evaluates whether a case can realistically move forward given the accused’s location.

8) Other legal options spouses often consider

A) Legal separation (Family Code)

Legal separation does not dissolve the marriage, but it can:

Allow spouses to live separately,
Trigger property regime consequences,
Address custody and support issues.

Sexual infidelity is commonly cited as a ground. Evidence standards differ from criminal cases (it’s not “beyond reasonable doubt”), but it is still a serious court process.

B) Annulment / declaration of nullity

Infidelity by itself is not the legal ground for nullity/annulment, but it may appear as part of the factual story (e.g., to show deeper marital issues). Each case depends on the legal ground invoked.

C) VAWC (RA 9262) for wives (and children)

A wife may explore psychological violence claims when marital infidelity causes mental or emotional suffering, depending on the facts. This is not typically a remedy available to husbands against wives under the same statute, and it commonly targets the abusive spouse/partner rather than the third party (unless there are special facts showing participation in abuse).

D) Practical protective steps

Even before litigation concludes, spouses often need advice on:

Evidence preservation,
Child arrangements,
Financial support,
Property protection,
Safety planning (in high-conflict situations).

9) Common myths (quick corrections)

Myth: “Any affair is concubinage.” Reality: Concubinage needs specific qualifying circumstances (conjugal dwelling / scandal / cohabitation).

Myth: “Chat logs are enough to win adultery.” Reality: Adultery requires proof of sexual intercourse; messages can support but may not be sufficient.

Myth: “I can file adultery for my friend/sister.” Reality: Only the offended spouse can file.

Myth: “I can sue only the mistress and exclude my spouse.” Reality: Generally not allowed for adultery/concubinage if both offenders are alive.

10) A realistic “decision guide” before filing

People usually assess three things:

Which crime fits the facts?
- Married woman + sexual intercourse → adultery
- Married man + conjugal dwelling/scandal/cohabitation → concubinage
- If neither fits well, consider other remedies.
Is evidence strong enough for criminal burden (beyond reasonable doubt)?
- Criminal cases are hard to win on suspicion alone.
Are there legal bars?
- Consent/pardon, prescription issues, or inability to include both parties can derail a case.

11) Final reminders

Adultery and concubinage cases are serious criminal actions with strict requirements and strategic consequences (on family life, finances, and children).
Because small details (timing, forgiveness, living arrangements, how evidence was obtained) can decide the outcome, it’s wise to consult a Philippine lawyer privately with your documents and timeline.

This article is general legal information for the Philippine context and is not a substitute for advice from counsel about your specific facts.