Introduction

In the Philippines, adultery remains a criminal offense under the Revised Penal Code (RPC), reflecting the country's conservative stance on marital fidelity rooted in its Catholic heritage. The query of whether an offended spouse can file adultery charges against an accused spouse who is abroad touches on issues of jurisdiction, criminal procedure, international law, and practical enforcement. This article explores the legal framework, procedural requirements, challenges posed by the accused's absence from the country, and related considerations in exhaustive detail. It draws from established Philippine jurisprudence, statutory provisions, and doctrinal principles to provide a comprehensive analysis.

Legal Basis for Adultery in the Philippines

Adultery is defined and penalized under Article 333 of the RPC, which states: "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." Notably, the law is gender-specific: it applies to married women engaging in extramarital affairs, while married men are charged with concubinage under Article 334, which requires cohabitation or keeping a mistress in the conjugal dwelling or under scandalous circumstances.

The offended spouse—typically the husband in adultery cases or the wife in concubinage—has the exclusive right to initiate the complaint. This is a key feature: adultery and concubinage are private crimes, meaning only the offended spouse can file the complaint, and it cannot be prosecuted motu proprio by the state or third parties. Under Article 344 of the RPC, the offended party must file the complaint before the proper authorities, and pardon or consent by the offended spouse extinguishes the criminal liability.

Penalties for adultery include imprisonment ranging from prisión correccional in its minimum and medium periods (2 years, 4 months, and 1 day to 6 years) for the wife, with similar penalties for the paramour. The law's gender disparity has been criticized as discriminatory, but it has withstood constitutional challenges, as seen in cases like People v. Zapata (G.R. No. L-30441, 1971), where the Supreme Court upheld the distinction based on societal norms at the time of enactment.

Jurisdiction Over Crimes Committed Abroad

The Philippine criminal justice system operates under the principle of territoriality, as outlined in Article 2 of the RPC, which provides that Philippine criminal laws apply to offenses committed within the Philippine territory, with exceptions for crimes against national security, those committed on Philippine vessels or aircraft, forgery of Philippine currency, and offenses by public officers abroad in their official capacity. Adultery, being a crime against personal relations, does not fall under these extraterritorial exceptions. Therefore, for adultery charges to be filed, the act must have been committed within Philippine territory.

However, if the adultery occurred abroad, Philippine courts generally lack jurisdiction unless the act has a direct nexus to the Philippines or falls under international agreements. In practice, Filipino spouses abroad may still face charges if the offense is deemed to have elements occurring in the Philippines, but this is rare for adultery. Jurisprudence such as People v. Tiu Won Chiong (G.R. No. L-48731, 1941) emphasizes that crimes like adultery require the act to be consummated within the jurisdiction for prosecution.

If the accused spouse is abroad but the adultery was committed in the Philippines, the offended spouse can still file charges. The physical presence of the accused is not required for filing the complaint or preliminary investigation. Under Rule 110 of the Rules of Court, a complaint for adultery can be filed with the prosecutor's office in the place where the crime was committed or where any of its elements occurred. The fiscal will conduct a preliminary investigation in absentia if necessary, as affirmed in People v. Ilarde (G.R. No. 182404, 2011).

Procedural Steps for Filing Charges

Complaint Filing: The offended spouse must file a sworn written complaint with the Office of the City or Provincial Prosecutor in the locality where the adultery occurred. The complaint must detail the acts constituting adultery, including evidence such as witness testimonies, communications, or other proofs of infidelity. Importantly, the complaint must be filed within the prescriptive period: 15 years for adultery under Article 90 of the RPC.
Preliminary Investigation: If the accused is abroad, the investigation proceeds without their presence. The prosecutor determines probable cause based on the complainant's evidence. If probable cause is found, an information is filed in court.
Arrest and Trial: Upon filing in court, a warrant of arrest may be issued. If the accused is abroad, enforcement becomes challenging. The court cannot compel attendance without extradition, but the case can be archived pending the accused's return, as per Supreme Court Administrative Circular No. 25-90. Trial in absentia is possible under Article III, Section 14(2) of the 1987 Constitution, but only if the accused has been arraigned and unjustifiably fails to appear thereafter. Since the accused is abroad, arraignment typically requires their presence or voluntary submission.
Pardon and Reconciliation: Even if charges are filed, the offended spouse can pardon the accused at any time before the institution of the criminal action or during the proceedings, extinguishing liability. This is absolute and applies even if the accused is abroad.

Challenges When the Accused Spouse Is Abroad

Enforcement of Arrest Warrants

If a warrant is issued, Philippine authorities cannot arrest the accused extraterritorially without cooperation from the host country. The Philippines has extradition treaties with several nations, including the United States (via the 1994 treaty), but adultery is not typically an extraditable offense. Extradition requires the crime to be punishable by at least one year of imprisonment in both jurisdictions, and many countries do not criminalize adultery. For instance, in the U.S., adultery is not a federal crime and is decriminalized in most states. Thus, extradition requests for adultery are unlikely to succeed, as seen in analogous cases involving non-extraditable private offenses.

International Legal Assistance

The Philippines is a party to the United Nations Convention Against Transnational Organized Crime and mutual legal assistance treaties (MLATs) with countries like those in ASEAN. However, these are geared toward serious crimes, not marital infidelity. Service of summons or subpoenas abroad can be facilitated through the Department of Foreign Affairs (DFA) under the Hague Service Convention, to which the Philippines acceded in 2019, but this is for civil matters primarily; criminal summons require bilateral agreements.

Dual Citizenship and Nationality Principle

If the accused holds dual citizenship, Philippine law under Republic Act No. 9225 (Citizenship Retention and Re-acquisition Act) treats them as Filipino citizens. However, the nationality principle in Article 2 of the RPC does not extend to adultery. In cases like Mercado v. Manalo (G.R. No. 131692, 1999), the Supreme Court clarified that personal crimes like bigamy (analogous to adultery) may invoke nationality if committed abroad by Filipinos, but adultery's territorial nature limits this.

Practical Realities

Many offended spouses opt for civil remedies instead, such as annulment or legal separation under the Family Code (Articles 55-56), where psychological incapacity or infidelity can be grounds without needing criminal conviction. Abroad, the accused may face immigration issues if charged, as criminal records can affect visa status, but unserved warrants alone may not trigger deportation.

Defenses and Mitigating Factors

Lack of Jurisdiction: If the act occurred abroad, the accused can argue absence of territorial jurisdiction.
Prescription: Delay in filing beyond 15 years bars prosecution.
Insufficient Evidence: Adultery requires proof of sexual intercourse, not mere suspicion.
Pardon: Express or implied consent by the offended spouse.
Validity of Marriage: If the marriage is void ab initio, no adultery can be committed.

Recent discussions on decriminalizing adultery, inspired by global trends and gender equality advocacy, have not materialized into law as of 2026. Bills like House Bill No. 100 in the 19th Congress sought reform but stalled.

Conclusion

An offended spouse can file adultery charges even if the accused is abroad, provided the offense occurred in the Philippines and procedural requirements are met. However, enforcement is fraught with obstacles due to jurisdictional limits, lack of extradition for such offenses, and international cooperation hurdles. While the criminal route affirms marital rights, many turn to family law remedies for resolution. Understanding these nuances is crucial for navigating the intersection of personal grievances and legal realities in a globalized world.