Criminal Liability for Husband’s Extramarital Sex in Philippine Law

(A comprehensive doctrinal and jurisprudential survey as of 8 July 2025)

Abstract

Under Philippine law, a married man who engages in sexual relations outside marriage may incur criminal liability principally in three ways: (1) concubinage under Article 334 of the Revised Penal Code (RPC); (2) psychological, economic or sexual violence under the Anti-Violence Against Women and Their Children Act of 2004 (RA 9262); and (3) bigamy if he contracts a second marriage while the first is subsisting. This article gathers and systematises every significant statutory, procedural, and jurisprudential rule on the subject, and situates them within family-law and human-rights debates about gender inequality, decriminalisation, and reform.

1 Historical Origins

Period	Key Instrument	Salient Features
Spanish era	Código Penal de 1870	First codified adultery/concubinage distinctions; imported the “mistress in the conjugal dwelling / scandalous intercourse” formula.
1930	Revised Penal Code (Act 3815)	Adopted almost verbatim as Art. 334 (concubinage) and Art. 333 (adultery).
1987 Constitution	Art. II §14 & Art. XIII §14	State policy on gender equality later spurred challenges to the double-standard.
2004	RA 9262	Recognised extramarital affairs that cause mental anguish as psychological violence.
2017	RA 10951	Adjusted fines but left Art. 334 penalties untouched.
2019-2025	Pending bills (e.g., HB 78, SB 1502)	Seek to equalise or decriminalise “marital infidelity”.

2 Concubinage (RPC Art. 334)

2.1 Elements

A married man is liable if, while the marriage is valid and subsisting, he either:

Keeps a mistress in the conjugal dwelling; or
Has sexual intercourse with her under scandalous circumstances (i.e., acts offensive to public decency, People v. Flores, 62 Phil 419 [1935]); or
Cohabits with her in any other place (People v. Abundo, G.R. L-15465, 30 Jan 1960).

Proof of actual sexual intercourse is not indispensable when cohabitation, common residence, or scandalous familiarity is convincingly shown.

2.2 Penalties

Offender	Penalty	Duration	Accessory effects
Husband	Prisión correccional, minimum & medium periods	6-months-1-day to 4-years-2-months	Suspension from political rights, eligibility for parole after ⅘ service, etc.
Mistress/paramour	Destierro	Banished >25 km from offended wife’s residence for the same period	Violation of destierro adds liability under Art. 157 (evasion of sentence).

2.3 Procedural Requisites (Art. 344)

Private offense – can be prosecuted only upon a sworn complaint of the offended wife.
Indispensable joinder – the complaint must include both the husband and his partner; failure to implead one bars prosecution of the other (People v. Sabanal, L-19025, 28 July 1962).
Condonation – express or implied pardon given before filing bars the action; pardon after filing but before judgment extinguishes liability (People v. Icuar, L-18419, 24 Oct 1962).
Prescriptive period – 10 years from the date of last overt act (Art. 90).
Venue & jurisdiction – ordinary concubinage is now within the Regional Trial Court because the maximum penalty exceeds 2 years and 4 months (AM 00-11-03-SC).

2.4 Evidentiary Pointers

Living arrangements – utility bills, barangay certifications, social-media posts, hotel registries; widely accepted as circumstantial proof of cohabitation.
Scandal – testimony that the affair was “notorious” or caused community gossip; presence of the mistress at family gatherings.
Defenses – death or annulment of first marriage, absence of any of the qualifying acts, or argumentum de minimis if contact was brief and private.

3 Extramarital Affairs as Violence Against Women (RA 9262)

3.1 Why RA 9262 often supplants concubinage

Feature	Concubinage	RA 9262 (Psychological violence)
Who can file	Only the legal wife	Wife or any woman with whom the offender has or had a sexual/romantic relationship, including live-in partners and dating relationships.
Proof needed	Must establish one of the Art. 334 modes	Only need to show act or omission that caused mental/emotional anguish (e.g., affair + insults)
Penalty	6 mos-1 day – 4 yrs-2 mos	Prisión mayor (6 yrs-1 day – 12 yrs) if committed while relationship subsists
Prosecutor’s role	Private offense	Public offense – state may continue case even if complainant desists (RA 9262, §25).

3.2 Elements (psychological violence branch)

The woman/child is or was in a domestic or dating relationship with the accused.
The accused, by act or omission, caused mental or emotional anguish, distress, or psychological injury.
The act is enumerated in §5(i) – includes causing or attempting to cause the woman to engage in any sexual activity which does not constitute rape, or “engaging in extramarital affairs”.
Offense committed within Philippine jurisdiction (or covered by RA 11641 for overseas acts).

3.3 Landmark Cases

Case	G.R. No.	Holding
AAA v. People	212448, 7 June 2016	Conviction affirmed where husband installed his mistress in a rented condo, cut off support, and habitually berated his wife.
Reyes v. People	215729, 11 Jan 2018	Extramarital affair alone is not enough; prosecution must prove the resulting psychological damage through expert or credible testimonial evidence.
People v. Abay	249398, 12 Apr 2021	Live-in partner’s mental breakdown and suicidal ideation after discovery of affair satisfied “mental anguish”; court relied on psychiatrist’s report and text messages.

3.4 Protective Orders & Ancillary Reliefs

Barangay POs – immediate, ex parte, 15-day protection.
Temporary & Permanent POs – issued by courts; may order temporary child custody, exclusive use of residence, and stay-away directives against the mistress.
Damages – actual, moral, exemplary; RA 9262 §31 integrates Civil Code Art. 2219.
Support & restitution – may be adjudged as part of criminal action (§32).

4 Bigamy (RPC Art. 349) & Related Offenses

If the husband contracts a second marriage without his first spouse’s valid dissolution, he is liable for bigamy – punishable by prisión mayor (6-12 years).
Subsequent declaration of nullity of the first or second marriage does not retroactively absolve bigamy liability (Tenebro v. CA, 423 Phil 878 [2001]; Abundo v. People, G.R. 249647, 16 Nov 2021).
Cybersex with a paramour may be prosecuted under the Cybercrime Prevention Act (RA 10175) in relation to Art. 334.

5 Civil & Family-Law Consequences

Remedy	Governing Law	Result
Legal separation	Family Code Art. 55(8)	Concubinage or sexual infidelity is a ground; must be filed within 5 years of discovery; does not allow remarriage but dissolves conjugal partnership & allows permanent spousal support.
Property relations	Art. 63(2)	Judgment of legal separation dissolves ACP/CPG; spouse in bad faith forfeits share in favour of common children.
Psychological incapacity annulment	Art. 36	A pattern of serial affairs can be indicia of inward incapacity to be faithful; accepted in Republic v. Molina line of cases, but success turns on expert proof.
Civil damages	Civil Code Arts. 26, 2176, 2219	Third-party lover may be sued for alienation of affection, moral & exemplary damages (e.g., Tiu v. Spouses Filart, G.R. 171610, 4 Mar 2009).
Disqualification from intestate succession	Art. 1032(2)	Paramour who cohabited with decedent forfeits inheritance.

6 Gender-Equality Critique & Reform Proposals

Double standard – adultery (against wife) ≥ 2 yrs-4 mos penalty; concubinage max 4 yrs-2 mos but heavier evidentiary hurdles for conviction.
CEDAW observations (2016 & 2022 cycles) urged the Philippines to repeal discriminatory provisions.
Pending bills seek either:
- Decriminalise both adultery & concubinage, leaving liability to RA 9262; or
- Replace them with a gender-neutral offense of “marital sexual infidelity” punishable uniformly.
Judicial work-arounds – prosecutors increasingly file under RA 9262 to bypass Art. 334’s gender and procedural hurdles.

7 Practical Guide for an Offended Wife

Document everything – chat screenshots, receipts of motel stays, psychiatric records.
Decide the forum –
- Concubinage if concrete proof of cohabitation/scandal and you wish both to face criminal liability.
- RA 9262 if primary injury is psychological/economic.
Sworn complaint – prepared before the Office of the City/Provincial Prosecutor; requires marriage certificate & identification of paramour.
Preliminary investigation – submit affidavits; probable-cause resolution typically within 60 days.
Arraignment & trial – produce testimonial & documentary evidence; consider plea-bargaining (Art. 62 vs RA 9262 §23).
Parallel civil actions – legal separation or damages may proceed independently; lis pendens may be noted on conjugal real property.

8 Defences Available to the Husband

Absence of any Art. 334 qualifying act – mere isolated infidelity without scandal/cohabitation is not concubinage.
Invalid complaint – filed by someone other than lawful wife, or paramour not impleaded.
Consent/forgiveness – must be proven by acts showing reconciliation (e.g., voluntary resumption of marital relations).
Questioned paternity – denial of marriage validity (though estoppel often applies).
For RA 9262 – absence of proof of psychological harm; trivial or single-instance dalliance; or relationship already extinguished before the act.

9 Statute of Limitations & Prescription

Offense	Penalty range	Prescriptive period (Art. 90 RPC)
Concubinage	Prisión correccional (≤ 6 yrs)	10 years
RA 9262 psychological violence	Prisión mayor (6-12 yrs)	15 years
Bigamy	Prisión mayor	15 years

The period is counted from the last overt act constituting the offense or, for continuing crimes (e.g., cohabitation), from cessation of the unlawful conduct.

10 Conclusion

Philippine criminal law offers a mosaic of remedies against a husband’s extramarital sex, but each is shaped by distinct historical biases and procedural hurdles. Concubinage remains narrow, gender-skewed, and rarely prosecuted. RA 9262 now supplies the more potent, gender-responsive avenue, provided psychological harm is proved. Bigamy fills the gap where a second marriage is involved. Alongside these, civil remedies via the Family Code and Civil Code offer moral and patrimonial redress.

Whether Congress will ultimately abolish the archaic double standard or replace it with a gender-neutral framework remains uncertain, but practitioners and scholars must, for now, navigate this layered regime—maximising protection for aggrieved spouses while safeguarding constitutional rights of the accused.

Keywords: concubinage, marital infidelity, RA 9262, psychological violence, Philippine criminal law, gender equality, adultery, bigamy, legal separation