Can a Wife File an Adultery Case Against Her Husband in the Philippines?

Short answer

No. Under Philippine criminal law, “adultery” is a crime committed by a married woman who has sexual intercourse with a man not her husband. A husband who is sexually unfaithful does not commit adultery; the counterpart offense for men is concubinage.

So if a husband strays, the legally correct criminal complaint the wife may pursue is concubinage—not adultery.

The legal framework at a glance

Adultery (Art. 333, Revised Penal Code)
- Offender: a married woman and her paramour.
- Elements: (1) a valid, subsisting marriage; (2) sexual intercourse between the married woman and a man not her husband.
- Nature: Private crime—it cannot be prosecuted except upon a complaint by the offended spouse (the husband), and the complaint must include both the wife and the paramour (if both are alive).
- Each sexual act is a separate offense.
- Penalty: prisión correccional (medium to maximum) for the wife; the same penalty for the paramour.
Concubinage (Art. 334, Revised Penal Code)
- Offender: a married man who, with a woman not his wife, either:
  1. keeps a mistress in the conjugal dwelling, or
  2. has sexual intercourse under scandalous circumstances, or
  3. cohabits with her in any other place.
- Nature: Private crime—it cannot be prosecuted except upon a complaint by the offended wife, and the complaint must include both the husband and the concubine (if both are alive).
- Unlike adultery, concubinage does not criminalize isolated, discreet infidelity unless it matches one of the three statutory modes above.
- Penalty: prisión correccional (minimum to medium) for the husband; destierro (banishment) for the concubine.

Key takeaway: A wife cannot file adultery against her husband—but she can file concubinage if the facts fit Article 334.

Who may file, and against whom?

Adultery: Only the offended husband may file, and he must include both his wife and her paramour.
Concubinage: Only the offended wife may file, and she must include both her husband and the alleged concubine.

If one of the alleged offenders has died, the case can proceed only against the surviving offender.

Consent, pardon, and other bars to prosecution

For both adultery and concubinage:

Prior consent or subsequent pardon by the offended spouse bars prosecution.
Pardon must cover both offenders (the spouse and the third party).
Condonation/forgiveness after discovery but before filing generally bars the action; reconciliation after filing may support dismissal.
Cooperation by the offended spouse in the illicit relationship can be treated as consent.

Prescription (time limits)

Adultery and concubinage generally prescribe in five (5) years, counted from the day of discovery by the offended spouse.
Because each adulterous act is a separate offense, each act has its own prescriptive period.
Concubinage (as cohabitation or keeping a mistress) is often treated as a continuing offense so long as the qualifying mode continues; prescription typically runs from cessation or discovery, depending on how the facts are pled and proved.

Practice note: Although the base penalty is “prisión correccional,” these offenses have long been treated with a five-year prescriptive period specific to their nature as private crimes.

Where to file and how proceedings unfold

Evaluate the facts against Article 334 (for a wife considering a case):
- Is the mistress kept in the conjugal dwelling?
- Are there scandalous circumstances (e.g., public displays, notorious relations)?
- Is there cohabitation in another place?
Gather evidence (see next section).
File a criminal complaint with the Office of the City/Provincial Prosecutor where any element of the crime occurred (e.g., location of the conjugal home or cohabitation). Attach:
- Your sworn complaint-affidavit narrating the facts;
- Marriage certificate;
- Supporting evidence (photos, messages, witness affidavits, etc.);
- Identify both alleged offenders.
Prosecutor’s evaluation / preliminary investigation:
- Standard: probable cause.
- If probable cause is found, an Information may be filed in the proper court.
Trial:
- Standard: proof beyond reasonable doubt.
- Defenses can include consent/pardon, lack of the qualifying mode (for concubinage), or failure to include both offenders.
Civil action:
- By default, a civil action for damages is deemed instituted with the criminal case (unless expressly waived or reserved).
- Moral damages may be claimed for marital infidelity; proof of actual damage is not strictly indispensable when the wrongful act is established.

Evidence: What works (and what often doesn’t)

Foundational

Marriage certificate (to prove the subsisting marriage).

To prove concubinage (any one mode suffices)

Keeping a mistress in the conjugal dwelling
- Utility bills, barangay certifications, testimonies of neighbors or household staff, photos/videos showing the mistress’ residence in the conjugal home.
Sexual intercourse under scandalous circumstances
- Public displays or notorious conduct: hotel logs tied to public exposure, social-media posts widely disseminated, witness accounts showing public notoriety.
Cohabitation elsewhere
- Residential lease/contracts in both names; delivery parcels, school records of children listing the husband as “father” at an address he shares with the woman; photos, neighbors’ affidavits.

Digital and documentary proof

Texts, emails, chat logs, photos, and videos may be admissible under the Rules on Electronic Evidence, if authenticated (by the sender/recipient, device forensics, or testimony about how they were obtained).
Hotel receipts, travel bookings, and financial records tying the pair together help establish scandal or cohabitation.

Cautions

Illegal recordings (e.g., secretly recording a private conversation without legal basis) can be excluded and may expose the recorder to liability.
Hacking a device/account or entrapment without law-enforcement oversight can also backfire.
Mere proof of sexual infidelity (e.g., one-off trysts) is not enough for concubinage unless it meets one of the three statutory modes.

Venue, multiplicity, and strategy

Adultery: Each sexual act is a separate count; venue is where the act occurred.
Concubinage: Often treated as continuing, so venue can be where the conjugal home is, or where the cohabitation occurs.
Because both are private crimes, a defective complaint (e.g., not including both offenders) is fatal. Draft with precision.

Relationship to family-law remedies

Legal Separation: Sexual infidelity is a statutory ground. This is a civil case that does not dissolve the marriage bond but ends property relations and allows spousal support/reliefs.
Nullity/Annulment: Different standards (e.g., psychological incapacity under the Family Code as interpreted by jurisprudence). A later decree of nullity does not erase criminal liability for acts committed while the marriage was subsisting.
Support, custody, and property: Independent civil actions may be pursued.
VAWC (R.A. 9262): If the husband’s acts amount to psychological violence, economic abuse, or similar, the wife may pursue criminal and protective order remedies under VAWC—separate from (or in addition to) concubinage.
Damages: Civil damages may be pursued against the spouse and the third party.

Penalties and collateral consequences

Concubinage (husband): prisión correccional (minimum to medium).
Concubine: destierro (banishment, i.e., prohibition from entering a radius around specified places).
Conviction does not by itself dissolve the marriage; it can, however, buttress a legal separation case and influence property and support outcomes.

Practical roadmap for a wife considering action

Map your facts to Article 334’s three modes. If none fits, a concubinage case is weak even if infidelity is real. Consider VAWC or civil remedies.
Preserve evidence lawfully: secure certified copies, make forensic images of devices (with counsel’s guidance), line up witnesses.
Avoid acts that may be illegal (hacking, wiretapping, physical confrontations).
Consult counsel early to craft the complaint-affidavit, ensure both offenders are named, and select proper venue.
Consider parallel civil remedies (legal separation, support, protection orders) for immediate relief.
Mind prescription: five (5) years from discovery is a common pitfall—don’t let the clock run out.

FAQs

Can I file both concubinage and VAWC? Yes, if facts support both. They protect different interests and require different elements.

If my husband had a one-night stand, is that concubinage? Not unless it qualifies as scandalous circumstances under Article 334. Mere secrecy and isolated acts typically don’t suffice.

Do I have to sue the other woman too? Yes. Both the husband and the alleged concubine must be included, if both are alive. Failing to do so is fatal to the case.

What if we reconciled after I discovered the affair? Consent or pardon generally bars prosecution. Even implied forgiveness (e.g., resuming marital relations with knowledge of the affair) can undermine the case.

Will a criminal case give me support or custody orders? Criminal courts may award civil damages, but for support, custody, and property issues, you usually need separate family-court proceedings (e.g., legal separation, protection orders).

Final notes

Philippine law draws a sharp distinction: wives commit adultery, husbands commit concubinage.
A wife seeking to hold an unfaithful husband criminally liable must satisfy Article 334’s specific modes; otherwise, focus on family-law or VAWC remedies.
Because these are private crimes with technical filing rules, early, tailored advice from a Philippine lawyer is crucial—especially to avoid pitfalls like failure to include both offenders, pardon/consent, and prescription.

This article is for general information on Philippine law and is not a substitute for formal legal advice regarding your specific facts.