Introduction

In the Philippines, marital fidelity is enshrined in both criminal and civil law, reflecting the country's strong emphasis on family as the foundation of society. The Revised Penal Code (RPC) criminalizes acts of infidelity through provisions on adultery and concubinage, which are gender-specific offenses designed to protect the sanctity of marriage. These crimes often intersect with civil obligations under the Family Code, particularly concerning child support for offspring born from extramarital relationships. This article comprehensively explores the legal framework surrounding concubinage, adultery, and child support issues for married individuals involved with another partner. It delves into definitions, elements, penalties, procedural aspects, defenses, and related legal implications, drawing from pertinent statutes, jurisprudence, and doctrinal principles.

Historical and Legal Context

The provisions on adultery and concubinage trace their roots to Spanish colonial law, incorporated into the Philippine Penal Code of 1930 (now the RPC). These offenses are classified as crimes against chastity, underscoring the moral and societal value placed on monogamous marriage. Despite evolving social norms and calls for reform—such as proposals to decriminalize infidelity or make the laws gender-neutral—these provisions remain in force. The Family Code of 1987 (Executive Order No. 209) complements the RPC by addressing civil consequences, including support for children, regardless of their legitimacy status. Jurisprudence from the Supreme Court has clarified interpretations, emphasizing the protection of family unity while recognizing rights of illegitimate children.

Adultery: Definition, Elements, and Penalties

Adultery is defined under Article 333 of the RPC as a crime 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. This offense is unilateral in its application to women, reflecting historical patriarchal views, though it implicates the male paramour as a co-accused.

Elements of Adultery

To establish adultery, the prosecution must prove the following beyond reasonable doubt:

The woman is married (a valid or voidable marriage suffices; absolute nullity may serve as a defense if proven).
She engages in sexual intercourse with a man who is not her husband.
The man knows that she is married (actual knowledge or circumstances implying knowledge).

Proof of sexual intercourse can be circumstantial, such as evidence of opportunity and inclination (e.g., hotel records, witness testimonies). Direct evidence is not required, but mere suspicion is insufficient.

Penalties

The penalty for adultery is prision correccional in its medium and maximum periods (2 years, 4 months, and 1 day to 6 years). Both the wife and her paramour face the same punishment. If the husband pardons the act, it extinguishes criminal liability for both parties, but this must be explicit and prior to the institution of the criminal action.

Procedural Aspects

Adultery can only be prosecuted upon complaint by the offended husband. If the husband is absent or incapacitated, the complaint may be filed by his parents, grandparents, or guardians. The action prescribes in 10 years. In practice, these cases often arise during marital disputes, such as annulment or legal separation proceedings, where evidence of adultery can serve as a ground for the latter under Article 55 of the Family Code.

Concubinage: Definition, Elements, and Penalties

Concubinage, governed by Article 334 of the RPC, applies exclusively to married men. It is committed by any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse under scandalous circumstances with a woman who is not his wife, or shall cohabit with her in any other place. This offense is less stringent than adultery, requiring more than a single act of infidelity.

Elements of Concubinage

The crime has three modalities, each with distinct elements:

Keeping a mistress in the conjugal dwelling: The husband maintains a woman (not his wife) in the family home for sexual purposes. Cohabitation implies a semi-permanent arrangement.
Sexual intercourse under scandalous circumstances: This involves acts that cause public outrage or disgrace, such as open displays of affection or intimacy in public view.
Cohabitation in any other place: The husband lives with the woman as if they were spouses, even if not in the conjugal home. Cohabitation requires a degree of permanence, not mere transient encounters.

The mistress must not be married herself; if she is, the offense may overlap with adultery. Knowledge of the man's marital status by the woman is not an element for her liability—she is punished as a co-accused regardless.

Penalties

The husband faces prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months), plus destierro (banishment). The concubine is punished with destierro alone. Pardon by the offended wife extinguishes liability, similar to adultery.

Procedural Aspects

Prosecution requires a complaint from the offended wife, with similar rules for substitutes if she is unavailable. Prescription is 10 years. Evidence often includes surveillance, financial records showing support for the mistress, or witness accounts of cohabitation.

Intersections Between Adultery, Concubinage, and Other Laws

These crimes frequently overlap with other legal provisions:

Violence Against Women and Their Children (VAWC) Act (Republic Act No. 9262): Infidelity can constitute psychological violence if it causes mental or emotional anguish. Economic abuse, such as diverting family funds to a paramour, may also apply. VAWC provides for protection orders and civil remedies, which can be pursued alongside criminal charges.
Marital Property and Separation: Under the Family Code, adultery or concubinage can be grounds for legal separation (Article 55), leading to property division and custody arrangements. In absolute community or conjugal partnership regimes, assets used for the extramarital partner may be reimbursable.
Annulment and Nullity: While not direct grounds for annulment, infidelity can evidence psychological incapacity (Article 36) if it demonstrates an inability to fulfill marital obligations.
Bigamy: If the married person attempts to marry the paramour without dissolving the first marriage, it constitutes bigamy under Article 349 of the RPC, punishable by prision mayor (6 years and 1 day to 12 years).

Child Support Issues in Extramarital Relationships

Children born from adulterous or concubinous relationships are considered illegitimate under Article 165 of the Family Code, but they enjoy rights nearly equivalent to legitimate children, including support, legitimation, and inheritance (albeit in reduced shares).

Obligation to Support

Article 194 of the Family Code mandates that parents provide support to their children, encompassing necessities like food, shelter, education, and medical care. This applies to illegitimate children, with the obligation joint and several between parents. The biological father in an extramarital affair is liable for support, even if he denies paternity.

Establishing Paternity and Filiation

Voluntary Acknowledgment: The father can recognize the child via the birth certificate, a public document, or a private handwritten instrument (Article 172).
Compulsory Recognition: If denied, the mother or child can file an action for compulsory recognition under Article 173, supported by evidence like DNA tests (highly persuasive per Supreme Court rulings), admissions, or continuous possession of status as a child.
DNA Testing: Republic Act No. 9255 allows illegitimate children to use the father's surname upon recognition. Courts may order DNA tests in paternity suits (A.M. No. 06-11-5-SC).

Amount and Enforcement of Support

The amount is determined based on the child's needs and the parents' financial capacity (Article 201). Courts use guidelines from the Department of Social Welfare and Development (DSWD) or judicial discretion. For enforcement:

Civil Action: File a petition for support in the Family Court.
Provisional Support: Pendite lite support can be granted during proceedings.
Criminal Sanctions: Non-support is punishable under Republic Act No. 9262 (if under VAWC) or Article 195 of the Family Code, with penalties up to prision correccional.

In cases where the married parent refuses support, the paramour (if applicable) has no legal obligation unless they have acknowledged the child or are in a common-law relationship qualifying under other laws.

Special Considerations for Illegitimate Children

Inheritance: They inherit half the share of legitimate children (Article 176, as amended by RA 9255).
Custody: The mother has sole parental authority over illegitimate children unless the father recognizes and seeks joint authority (Article 176).
Legitimation: If the parents subsequently marry, the child can be legitimated (Article 177), elevating their status to legitimate.

Defenses and Mitigating Factors

Common defenses include:

Lack of Marriage Validity: If the marriage is absolutely null (e.g., bigamous), no crime occurs.
Pardon or Condonation: Explicit forgiveness by the offended spouse bars prosecution.
Insanity or Mistake: Rare, but if the accused was unaware of the marital status due to deception.
Prescription: Time-barred actions. In child support cases, defenses like lack of paternity must be proven; financial incapacity reduces but does not eliminate the obligation.

Societal and Reform Perspectives

While these laws aim to preserve family integrity, critics argue they are outdated, discriminatory, and ineffective in modern society. Gender bias in adultery and concubinage has led to calls for equalization or decriminalization, as seen in bills like the proposed Anti-Marital Infidelity Act. Enforcement is low due to social stigma and evidentiary challenges. Child support enforcement remains a priority, with government programs aiding single parents through the Solo Parents' Welfare Act (RA 8972).

Conclusion

The Philippine legal system addresses infidelity through punitive measures in the RPC while ensuring child welfare via the Family Code. Married persons engaging with another partner risk criminal liability, civil repercussions, and ongoing support obligations. Understanding these provisions is crucial for navigating the complex interplay of morality, law, and family rights in the country.