Quick answer

Generally, no. If the alleged offense is adultery and both your wife and her alleged lover are alive, you cannot choose to prosecute only the lover. The complaint must include both alleged guilty parties. Only the offended husband may initiate the adultery complaint.

There are limited situations in which a case may ultimately proceed against only one accused—for example, if the other alleged offender is already dead, cannot be apprehended after both were properly included, or is later dismissed or acquitted for a defense personal to that accused. Those exceptions do not ordinarily permit an offended spouse to deliberately leave a living spouse out of the initial complaint.

If the unfaithful spouse is the husband, the possible offense is concubinage, not adultery. The offended wife must likewise include both her husband and the alleged concubine if both are alive, but concubinage has different and more specific elements.

Why both parties must be included

Article 344 of the Revised Penal Code and Section 5, Rule 110 of the Rules of Criminal Procedure provide that adultery and concubinage may be prosecuted only upon a complaint filed by the offended spouse. They also state that the offended spouse cannot institute the prosecution without including the guilty parties if both are alive.

This rule prevents selective prosecution—such as pursuing the lover while deliberately protecting, forgiving, or continuing to live with the unfaithful spouse.

The requirement concerns the institution of the criminal case. Once a proper complaint has been filed, the public prosecutor directs and controls the prosecution. The offended spouse becomes principally a complainant and prosecution witness, not the person who decides which accused will be convicted or whether the case will continue.

When the offense is adultery

Under Article 333 of the Revised Penal Code, adultery involves:

A woman who was married when the alleged act occurred;
Sexual intercourse between her and a man who was not her husband; and
As to the man, knowledge that the woman was married.

The marriage remains relevant even if it is later declared void. A separation in fact, a pending annulment or nullity case, or living in different homes does not by itself dissolve the marriage.

A boyfriend, close friendship, romantic messages, kissing, travelling together, or even an admission of an “affair” does not automatically establish the statutory act of sexual intercourse. Direct or properly supported circumstantial evidence may be considered, but the prosecution must ultimately prove every element beyond reasonable doubt.

The male partner has an element personal to him: he must have known that the woman was married. Thus, the evidence may support different outcomes for the two accused even though both had to be included initially.

Each proven act of sexual intercourse may constitute a separate offense. Dates and places should therefore be identified as accurately as the available evidence permits.

If the unfaithful spouse is the husband

A wife generally cannot charge her husband or his lover with “adultery.” Article 334 classifies the possible offense as concubinage. It requires proof that the husband did at least one of the following:

Kept a mistress in the conjugal dwelling;
Had sexual intercourse with a woman not his wife under scandalous circumstances; or
Cohabited with her in another place.

An affair or isolated sexual encounter does not necessarily satisfy these statutory alternatives. The particular living arrangement, location, duration, surrounding circumstances, and available proof matter.

If both the husband and alleged concubine are alive and appear responsible, the offended wife must include both. The husband and concubine are subject to different statutory penalties: the husband may receive imprisonment, while the concubine may receive destierro, which prohibits her from entering specified places or coming within the distance fixed by the court.

Limited situations involving only one accused

A case may involve only one remaining accused in circumstances such as these:

The other alleged offender is dead

The rule expressly requires inclusion when both alleged guilty parties are alive. If one died before filing, the surviving alleged offender may potentially be charged, provided all elements applicable to that person can still be established. Proof of death and careful pleading will be important.

Both were included, but one cannot be arrested or tried

Proper inclusion does not mean the proceedings must always occur simultaneously. A case may continue against an accused who is before the court even if the other has fled, cannot be apprehended, dies while the case is pending, or must be tried separately.

One accused has a personal defense

One accused may be dismissed or acquitted without automatically absolving the other. For example, a male partner who did not know that the woman was married may lack the required criminal knowledge, while the married woman may still face liability. The reverse result may also depend on the evidence and applicable defenses.

These are not invitations to omit a known, living alleged offender at the outset. The prosecutor or court—not the complainant acting alone—determines whether the proceedings may later continue against only one accused.

The other person’s identity is genuinely unknown

The Rules of Criminal Procedure allow an accused whose true name cannot be ascertained to be described under a fictitious name, with a statement that the true name is unknown. Because adultery and concubinage have a special inclusion requirement, do not simply leave a known participant out. Give the prosecutor every identifying detail available and obtain advice on the proper form of the complaint.

Consent and pardon can bar the complaint

The offended spouse cannot institute an adultery or concubinage prosecution if that spouse consented to the offense or pardoned the offenders before the criminal action was instituted.

Pardon may be express or inferred from conduct, but reconciliation, continued cohabitation, delay, or an isolated affectionate act does not produce the same legal conclusion in every case. The timing, words, conduct, and surrounding facts must be examined together.

A valid pardon must cover both offenders. Selectively pardoning the spouse while trying to prosecute the lover is inconsistent with the statutory rule.

Once a proper criminal action has been instituted, a later change of heart or affidavit of desistance does not automatically terminate it. The Supreme Court has emphasized that prosecution is then under the State’s direction and may continue despite the complainant’s later withdrawal or death.

Where and how to begin

Adultery carries prisión correccional in its medium and maximum periods—generally imprisonment from two years, four months and one day to six years. Because the prescribed maximum exceeds the threshold for preliminary investigation, the usual starting point is a complaint with the appropriate prosecutor’s office.

Practical steps include:

Confirm the correct offense. Determine whether the facts potentially constitute adultery, concubinage, or a different offense. The labels are not interchangeable.
Identify the place of each alleged act. Criminal venue is generally tied to where the offense or an essential ingredient occurred. Evidence of conduct in another city or province may require separate treatment.
Prepare a detailed complaint-affidavit. State facts personally known to you, identify both alleged offenders if alive, and separate personal observations from information received from other people.
Attach supporting records. Include properly obtained documents, photographs, communications, witness affidavits, and proof of marriage and identity. Follow the current documentary and copy requirements of the receiving prosecutor’s office.
Participate in preliminary investigation. The prosecutor evaluates the parties’ affidavits and evidence and determines whether the case should be filed in court under the applicable probable-cause standard. Filing a complaint does not guarantee that an information will be filed or that anyone will be convicted.

The Department of Justice publishes a general checklist for filing a complaint for preliminary investigation, including its Investigation Data Form and requirements for complaint-affidavits and supporting documents. Local offices may issue additional administrative instructions, so confirm the current requirements directly with the proper prosecutor’s office.

Barangay conciliation is generally not a prerequisite for adultery because the prescribed imprisonment exceeds one year, an exclusion recognized in Section 408 of the Local Government Code. Venue and filing questions should nevertheless be confirmed before submission.

Time limit: do not assume you have ten years from the affair

Under Articles 90 and 91 of the Revised Penal Code, offenses punishable by correctional penalties generally prescribe in ten years. The computation is not always ten years from the physical act. Article 91 addresses discovery, interruption by the filing of a complaint or information, resumption in specified circumstances, and periods when the offender is outside the Philippines.

Multiple alleged acts can also have different dates and prescription calculations. Because discovery, filing history, absence from the country, and the particular charge may affect the deadline, consult a lawyer promptly instead of relying on a rough calendar calculation.

Evidence worth preserving

Preserve evidence in its original form whenever possible:

PSA-issued or civil-registry marriage records;
Complete message threads rather than selected screenshots;
Original photographs, videos, emails, and files with available metadata;
Lawfully obtained hotel, travel, lease, residence, or financial records;
Names and contact details of witnesses with personal knowledge;
A dated chronology showing what happened, where, and how you learned it;
Proof that the alleged lover knew of the marriage, such as introductions, prior communications, public posts, or meetings with the family;
Records showing when the affair was discovered, which may matter to prescription;
Threats, harassment, financial deprivation, or harm to children, if present.

Keep an untouched copy and a working copy. Record who obtained each item, when it was obtained, and where the original is stored. Avoid editing, cropping, re-exporting, or repeatedly forwarding electronic files.

Do not obtain evidence unlawfully

Do not hack accounts, guess passwords, install spyware, impersonate another person, steal a device, trespass, or secretly intercept communications. Evidence-gathering can create separate criminal, civil, privacy, or evidentiary problems.

Republic Act No. 4200 generally prohibits secretly intercepting or recording private communications without authorization from all parties, subject to its statutory exceptions. Before making or using a covert recording, obtain case-specific legal advice.

Also avoid posting accusations, intimate images, addresses, or private messages online. Public shaming may expose you to separate liability and can complicate the criminal case.

Common mistakes

Filing only against the lover even though the spouse is alive;
Allowing a parent, sibling, investigator, or another relative to initiate the private complaint instead of the offended spouse;
Calling a husband’s affair “adultery” instead of assessing concubinage;
Treating romantic messages or pregnancy alone as conclusive proof of the required sexual act;
Failing to prove that the male partner knew the woman was married;
Omitting the specific place of the alleged offense;
Combining several alleged acts without identifying their approximate dates and locations;
Submitting altered screenshots without original files or contextual conversations;
Obtaining evidence through account intrusion, secret interception, or trespass;
Assuming an affidavit of desistance will automatically stop a case already instituted;
Waiting until prescription or loss of electronic evidence becomes a serious issue;
Using the criminal complaint chiefly to threaten, embarrass, or demand money from the accused.

Knowingly making a false sworn accusation can itself carry serious legal consequences. A complaint-affidavit should contain only facts the complainant can honestly attest to and evidence that can be authenticated.

When legal help is urgent

Seek immediate assistance from a Philippine lawyer, the Public Attorney’s Office if eligible, or the proper government office when:

The possible prescriptive period is close;
An accused is about to leave the country or evidence may be destroyed;
You are unsure where the sexual act or cohabitation occurred;
One alleged offender has died, disappeared, or cannot be identified;
There was prior reconciliation, consent, pardon, or a signed settlement;
You obtained evidence from a phone, account, recording, tracker, or private premises;
The conduct includes threats, stalking, assault, coercion, economic abuse, or danger to a child;
You have been asked to sign an affidavit of desistance or waiver;
A prosecutor has dismissed the complaint and a review deadline may be running; or
You have received a subpoena, warrant, protection-order application, or court notice.

For women and children experiencing abuse, marital infidelity may intersect with Republic Act No. 9262 when the statutory elements of psychological violence or another prohibited act are independently established. Infidelity alone should not be treated as an automatic conviction; the specific acts, intent where required, and resulting mental or emotional anguish must be proved under the applicable charge.

Frequently asked questions

Can I forgive my spouse but prosecute the lover?

Not ordinarily. If both alleged offenders are alive, the complaint must include both. A pre-filing pardon that legally benefits the offenders can also bar prosecution.

Can the police file adultery for me?

No. Adultery and concubinage are private crimes that require a complaint initiated by the offended spouse. Police may assist with lawful investigation, but they cannot replace the offended spouse’s statutory decision to commence the case.

Can I file if we are legally separated?

Legal separation does not dissolve the marriage bond. A complaint may still be legally possible, but the circumstances of the separation, any consent or pardon, the date of the alleged acts, and the court’s decree must be reviewed.

What if an annulment or nullity case is pending?

A pending case does not by itself end the marriage. Article 333 also states that adultery may exist even if the marriage is subsequently declared void. The precise dates and legal effect of any final judgment should be examined by counsel.

Is a child’s birth certificate enough proof?

It may be relevant, but it does not automatically prove every element of adultery or the identity and criminal knowledge of the alleged lover. Questions of parentage, admissibility, authenticity, and other corroborating evidence remain.

Must someone have witnessed the sexual act?

Not necessarily. Criminal facts may be established through admissible direct or circumstantial evidence, but suspicion or proof of romance alone is insufficient. The evidence as a whole must support the required elements, initially for prosecutorial action and ultimately beyond reasonable doubt for conviction.

If my spouse dies after filing, does the case automatically end?

No. Once a proper complaint has instituted the criminal action, the prosecution may continue under the State’s control despite the offended spouse’s later death. The death of an accused has different consequences and requires immediate legal assessment.

Can I withdraw the complaint later?

You may communicate your position to the prosecutor or court, but a later withdrawal or affidavit of desistance does not automatically dismiss a criminal case already instituted. Do not sign one without understanding its legal and practical effects.

Official legal sources

This article provides general legal information, not advice for a specific case and not an attorney-client relationship. Outcomes depend on the marriage records, dates, locations, evidence, prior conduct, and procedural history. Philippine legal sources and procedures were checked as of July 27, 2026.