1) Why this topic is confusing (and why wording matters)

In Philippine law, “concubinage” is not a catch-all term for “cheating.” It is a specific criminal offense under the Revised Penal Code (RPC) that is committed by a husband under particular circumstances.

So when people ask, “Can a husband sue the third party?” there are usually two different scenarios hiding inside the question:

Husband is the one having an affair → the wife is the “offended spouse” for concubinage (if the legal elements exist).
Wife is the one having an affair → the husband is the “offended spouse,” but the offense is adultery, not concubinage.

This article covers concubinage and the “third party” (the mistress), and also explains what a husband can do when he is the offended spouse (which typically involves adultery or civil claims, not concubinage).

This is general legal information for Philippine context, not legal advice. Facts change outcomes fast—consult a Philippine lawyer for guidance on your specific case.

2) The crimes: adultery vs concubinage (quick comparison)

Adultery (RPC, traditionally Art. 333)

Who commits it: a wife who has sexual intercourse with a man not her husband; and the man who participates knowing she is married.
What must be proven: sexual intercourse (not just intimacy or dating).
Offended spouse who can file: the husband.

Concubinage (RPC, traditionally Art. 334)

Who commits it: a husband who engages with a mistress in specific legally defined ways; and the mistress (concubine) under those same circumstances.
What must be proven: not every affair qualifies—there must be intercourse plus one of the special circumstances listed by law.
Offended spouse who can file: the wife.

Key takeaway: If the husband is the offended spouse because his wife cheated, the criminal case is usually adultery, not concubinage.

3) What exactly counts as “concubinage” in the Philippines?

Concubinage is committed by a husband if he:

Keeps a mistress in the conjugal dwelling, or
Has sexual intercourse under scandalous circumstances, or
Cohabits with her in any other place.

What those phrases generally mean in practice

Conjugal dwelling: the home where the spouses live as husband and wife. Keeping a mistress there is a major “trigger” for concubinage.
Scandalous circumstances: behavior so open and notorious that it becomes a public affront (not just private cheating). Think “publicly brazen,” not merely “hurtful.”
Cohabits in any other place: living together like a couple in a different residence (more than occasional meetups).

Important: “Affair” ≠ automatically concubinage

A husband may be unfaithful yet still not be criminally liable for concubinage if the affair does not meet any of the three circumstances above (even if the behavior is morally wrong or a ground for legal separation).

4) Who is the “third party,” and can they be sued?

In concubinage, the “third party” is the mistress/concubine. Under the RPC structure:

Concubinage is designed to charge both:
- the husband, and
- the mistress (typically punished with destierro, i.e., banishment from specified places).

So yes, the third party can be proceeded against—but not as a standalone “third-party lawsuit” in the usual sense. Concubinage is a criminal case initiated by the wife, and it normally includes both accused.

5) Can a husband file a concubinage case against the mistress?

No. A concubinage case is filed by the offended wife, because the crime is defined as the husband’s wrongdoing (with the mistress participating).

If the husband is the offended spouse (wife cheated), what can he file?

Criminal: Adultery (against his wife and her sexual partner, if provable).
Family case: Legal separation (sexual infidelity is a ground).
Civil case: Possible damages under the Civil Code (more on this below).

6) The “private crime” rule: why the spouse’s complaint is everything

Adultery and concubinage are typically treated as private crimes—meaning:

The State generally cannot prosecute unless the offended spouse files a sworn complaint.
The offended spouse is expected to file against both guilty parties (if both are alive and identifiable), not only one—because the law treats it as a joint betrayal that must be pursued consistently.

Practical implications

If the offended spouse refuses to complain, there is usually no case.
If the offended spouse has consented or pardoned the conduct, that can block or end prosecution depending on circumstances.
An affidavit of desistance (dropping the complaint) can be fatal to the case in many situations, because the complaint is the engine that drives prosecution.

7) Can the offended spouse claim damages, and against whom?

A) Civil damages tied to the criminal case

Criminal acts can carry civil liability. In practice, the offended spouse may pursue damages connected to the prosecution (subject to procedural rules, reservations, and how the case is filed).

Possible damages concepts include:

Moral damages (emotional suffering, social humiliation)
Exemplary damages (to set an example, typically when the act is wanton or done with bad faith)
Costs/attorney’s fees (in limited circumstances)

B) Separate civil actions against the third party (Civil Code)

Even when criminal elements are hard to prove, some spouses explore a separate civil case for damages based on:

Abuse of rights / bad faith principles (Civil Code concepts),
Acts contrary to morals, good customs, or public policy, and/or
Meddling with family relations / invasion of privacy / indignities (also Civil Code concepts).

But civil suits against a third party are not automatic. Philippine courts generally look for a clearly wrongful act—not just “they had an affair.” Stronger fact patterns include:

The third party brazenly intrudes into the family (harassment, threats, public taunting),
The third party causes public humiliation or workplace/community scandal,
The third party induces abandonment with aggravating misconduct,
There’s fraud, coercion, blackmail, doxxing, or related wrongful behavior.

Reality check: A civil case can be viable, but outcomes depend heavily on evidence and the judge’s appreciation of whether the third party’s conduct is independently wrongful—not merely romantic involvement.

8) If the question is “Can the husband sue the third party?” — answer by situation

Situation 1: Husband cheated (wife is offended)

Husband cannot “sue the third party” as offended spouse under concubinage.
The wife may file:
- Concubinage (if the legal circumstances exist), naming husband and mistress; and/or
- Legal separation (sexual infidelity); and/or
- VAWC if the facts fit psychological violence (commonly filed by wives against husbands in infidelity contexts); and/or
- Civil damages depending on conduct.

Situation 2: Wife cheated (husband is offended)

Husband may file adultery, naming:
- wife, and
- her sexual partner (third party), usually requiring proof of intercourse and knowledge of marriage (for the partner).
Husband may also consider:
- Legal separation (sexual infidelity),
- Civil damages if facts show independently wrongful conduct.

9) Evidence: what’s usually required (and what can backfire)

What tends to be necessary

Because adultery/concubinage require proving sexual conduct and/or cohabitation-style facts, evidence often revolves around:

Witness testimony (neighbors, building staff, household members—handled carefully)
Proof of shared residence/cohabitation (leases, utilities, barangay certifications—again, carefully)
Public and notorious conduct (photos/videos taken lawfully, social media posts)
Admissions (messages can help, but see legality below)

Major warning: illegal evidence can create new crimes

Common traps include:

Wiretapping / secretly recording private conversations (very risky; may violate law)
Hacking accounts, accessing private messages without authority
Voyeurism-type recording or non-consensual intimate image possession/sharing
Data-privacy violations (depending on how information is obtained/used)

Even if the spouse feels “justified,” unlawfully obtained evidence can be excluded and can expose the collector to criminal and civil liability.

10) Defenses and blockers (why many cases collapse)

For concubinage/adultery generally, frequent defenses include:

Failure to meet specific legal elements (e.g., no “conjugal dwelling,” no “scandalous circumstances,” no “cohabitation”)
Identity issues (wrong person accused)
Insufficient proof of intercourse (especially in adultery)
Consent or pardon by the offended spouse
Procedural defects in the sworn complaint
Marriage validity disputes (complex; outcomes vary and are very fact- and doctrine-dependent)

11) Family-law remedies often matter more than criminal punishment

Even when criminal prosecution is possible, many spouses prioritize outcomes that affect real life:

Legal separation

Sexual infidelity is a ground.
Can lead to separation of property relations and other consequences, but does not allow remarriage (unlike annulment/nullity).

Nullity/annulment (depending on facts)

Separate from concubinage/adultery.
Often pursued for long-term resolution (but requires specific legal grounds, not simply “cheating”).

Child custody and support

Infidelity alone is not always the deciding factor; courts focus on the child’s best interests.
But scandalous conduct and instability can affect custody evaluation in some cases.

12) Practical “can you sue?” checklist

If you’re evaluating whether the third party can be pursued, ask:

Who is the offended spouse under the law?
- Wife → concubinage may apply (if elements exist).
- Husband → adultery may apply (if elements exist).
Can you prove the legal elements with lawful evidence?
Are there consent/pardon issues? Past forgiveness, reconciliation, or tolerance can be case-killers.
Is a civil case stronger than a criminal case? Sometimes the conduct is wrongful enough for damages but not enough to meet strict criminal elements.
What remedy do you actually want? Punishment, damages, separation, custody stability, financial protection—each points to different strategies.

Bottom line

Concubinage is a crime committed by a husband under specific circumstances, and it is typically pursued by the wife against both the husband and the mistress.
A husband cannot file concubinage against his wife’s lover. If the husband is the offended spouse, the comparable criminal remedy is usually adultery (against both the wife and her partner), plus potential family-law and civil remedies.
A “third party” can sometimes be pursued civilly for damages, but success depends on proof of independently wrongful conduct, not merely the existence of an affair.

If you want, tell me which scenario you mean (husband cheated vs wife cheated) and what goal you’re aiming for (criminal accountability, damages, legal separation, custody/property protection), and I’ll map the most relevant options and the usual proof issues.