Criminal Liability for Adultery and Concubinage in the Philippines
A doctrinal and practical guide for students, litigators, and policy-makers
1. Statutory Anchors
| Crime | Revised Penal Code (RPC) Article | Core Protected Value |
|---|---|---|
| Adultery | Art. 333 | Sexual fidelity of the married woman and legitimacy of offspring |
| Concubinage | Art. 334 | Sexual exclusivity of the husband plus social repute of the wife |
Both crimes were carried over intact from the 1930 RPC and remain in force unless repealed or declared unconstitutional by Congress or the Supreme Court.
2. Elements
2.1 Adultery
- The woman is married and the marriage is valid.
- She has sexual intercourse with a man not her husband.
- The act occurs during the marriage.
- Knowledge of the woman’s marital status by the man is not essential to her liability, but is essential to his.
Conviction requires proof of sexual intercourse; mere romantic liaison, photographs, or admissions of affection will not suffice unless they clearly show the “fact of carnal union.”
2.2 Concubinage
The man is married.
He commits any of the following:
- (a) Keeps a mistress in the conjugal dwelling; or
- (b) Cohabits with her in any other place; or
- (c) Has sexual intercourse with her under scandalous circumstances.
The woman knows that the man is married.
Note: Concubinage does not require proof that the man’s wife is innocent or offended; her mere existence suffices.
3. Private-Complaint Requirement
Adultery and concubinage are private crimes (RPC Art. 344):
- Only the offended spouse may file the sworn complaint.
- He or she must include both parties (spouse and paramour) if both are alive.
- Condonation or express/implicit pardon bars prosecution; it may be shown by voluntary cohabitation after discovery or a written pardon.
- The action is likewise barred by the offended spouse’s own commission of adultery/concubinage.
4. Penalties
| Offender | Penalty | Nature |
|---|---|---|
| Adulterous wife & paramour | Prisión correccional in its medium & maximum periods (2 yrs-4 mos & 1 day - 6 yrs) | Both principals |
| Concubinous husband | Prisión correccional in its minimum period (6 mos & 1 day - 2 yrs & 4 mos) | Principal |
| Concubine/paramour | Destierro (banishment; 25 km radius) | Accessory |
The disparity—full imprisonment for the wife and only banishment for the mistress—has fueled repeated constitutional challenges, but the Court has so far upheld the law under the State’s police power.
5. Venue & Jurisdiction
- Regional Trial Court (RTC)—exclusive original jurisdiction; prisión correccional is within the RTC’s jurisdiction under Batas Pambansa 129 as amended.
- Venue—where any element occurred. In adultery this is often the place of sexual intercourse; in concubinage, either the conjugal home (Art. 333(a)) or where cohabitation/scandal took place (Art. 333(b)/(c)).
6. Prescription
| Crime | Limitations Period | Commences |
|---|---|---|
| Adultery | 10 years | Date of last adulterous act |
| Concubinage | 10 years | Date the acts ceased (for cohabitation), or last scandalous intercourse |
7. Evidentiary Highlights
- Direct proof is rare; courts regularly accept circumstantial evidence when it constitutes an “unbroken chain” leading to a moral certainty of intercourse.
- Birth certificates can be circumstantial proof (e.g., date of conception).
- Text messages, e-mails, chat logs are admissible if authenticated; the Cybercrime Prevention Act (RA 10175) supplies procedures.
- Entrapment is lawful, but in flagrante arrests inside a bedroom may trigger privacy and search-and-seizure objections (see People v. Dado, G.R. 110206, 1994).
8. Defenses
- Absence of an element (e.g., invalid prior marriage, no sexual act, no scandal).
- Pardon or condonation by the offended spouse.
- Prescription.
- Void marriage of complainant for bigamy—an absolute defense.
- Alibi and vis major (rape of the wife negates voluntariness).
9. Interaction with Civil Remedies
| Civil action | Governing law | Link to criminal case |
|---|---|---|
| Legal separation | Family Code Art. 55(8) | Can be filed before or after criminal case; conviction is conclusive proof of the ground. |
| Annulment/nullity | Family Code Arts. 35-45 | Adultery/concubinage alone is not a ground but can support psychological incapacity. |
| Damages | Civil Code Art. 26 | May be pursued independently for humiliation or mental anguish. |
10. Overlap with VAWC (RA 9262)
A spouse who engages in extramarital affairs that cause mental/emotional anguish to the wife or child may be charged under RA 9262 in addition to or instead of RPC crimes. The offended party need not prove intercourse—psychological violence suffices.
11. Overseas or Online Adultery
- Territoriality rule (RPC Art. 2) bars prosecution for acts consummated abroad unless under binding treaty.
- If the paramours use video-sex or cybersex while physically in the Philippines, venue lies where the computer or phone was operated.
12. Jurisprudential Milestones
| Case | G.R. | Holding |
|---|---|---|
| People v. Zapata (1946) | L-457 | Pardon must be prior to filing and absolute; conditional pardon (e.g., if wife returns) is void. |
| Garcia v. Drilon (G.R. 179267, 2013) | — | RA 9262 does not violate equal-protection even if RPC crimes already punish adultery/concubinage. |
| People v. Abellas (G.R. 223580, 2019) | — | “Conjugal dwelling” means current marital home—even if titled to parents. |
| AAA v. BBB (A.C. 5339, 2003) | — | Lawyer-paramour suspended from practice; adultery may also be administrative misconduct. |
(The list is selective; more than sixty SC and CA rulings interpret the elements, prescription, and condonation doctrines.)
13. Gender-Equality Critique
- Disparate elements (sexual intercourse vs. scandal/cohabitation)
- Disparate penalties (imprisonment vs. banishment)
- Bills to repeal these provisions (e.g., HB 78, SB 2443) remain pending; they seek to replace them with “sexual infidelity” as a gender-neutral offense or to de-criminalize altogether in favor of purely civil sanctions.
14. Step-by-Step Guide to Filing
- Consult counsel or go to the PNP-Women and Children Protection Desk.
- Execute a sworn complaint-affidavit detailing dates, places, and evidence.
- Attach proof (e.g., text messages, hotel receipts, witnesses).
- File with the Office of the City/Provincial Prosecutor; pay ₱200-₱400 filing fee.
- Attend clarificatory hearings; submit additional evidence.
- If probable cause is found, Information is filed with the RTC.
- Arraignment and pre-trial follow regular criminal procedure.
- Affidavit of desistance may be filed, but dismissal is not automatic; the court (not the offended spouse) now controls the case.
15. Practical Tips & Ethical Notes for Lawyers
- Verify the subsisting marriage (NSO/PSA certificate).
- Warn about counter-charges (violence, threats, perjury).
- Encourage konsultasyon or counseling; the preserving of the family is a policy of the State (Art. II, Sec. 12, 1987 Constitution).
- Explain destierro clearly; clients often confuse it with mere “restraining order.”
- Digitally secure evidence—obtain hash-values to defend against tampering claims.
16. Conclusion
Adultery and concubinage remain among the few penal-code provisions that criminalize marital infidelity. While widely criticized as archaic and gender-biased, they continue to be enforced, survive equal-protection challenges, and interact with newer statutes such as RA 9262 and the Cybercrime Prevention Act. A would-be complainant must grasp the elements, prescription rules, and condonation bar, lest the case be dismissed outright. For practitioners, mastery of jurisprudence and evidence-gathering protocols is indispensable; for reform advocates, the policy debate centers on whether criminal law is still the proper instrument for policing intimate relationships in the 21st-century Philippines.