Criminal Liability for Spouses and Third Parties in the Philippines: Adultery, Concubinage, and Related Offenses

Updated for the Revised Penal Code (RPC) and major ancillary statutes as of mid-2024. This is general information, not legal advice.

1) Core Penal Provisions

Adultery (RPC Art. 333)

Who can commit: A married woman who engages in sexual intercourse with a man not her husband. Liability of the man: He is liable only if he knew she was married (knowledge must be alleged and proved). Each act is a crime: Every sexual intercourse constitutes a separate count of adultery. Penalty: Prisión correccional in its medium and maximum periods (i.e., 2 years, 4 months and 1 day to 6 years). Both the woman and the knowing partner receive the same principal penalty.

Elements to prove:

A valid marriage of the woman at the time of the act (usually via certified marriage certificate);
Sexual intercourse with a man not her husband (direct proof is not indispensable; strong circumstantial evidence may suffice);
For the man: knowledge of the woman’s marriage (may be inferred from circumstances but cannot be presumed).

Concubinage (RPC Art. 334)

Who can commit: A married man who, with a woman not his wife, does any of the following:

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

Penalties:

For the husband: Prisión correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months).
For the woman (concubine): Destierro (banishment—barred from entering places designated by the judgment, commonly the offended spouse’s residence and environs).

Notes on modes:

Keeping in conjugal dwelling implies habitual or continued presence in the marital home or the place the spouses actually use as such.
Scandalous circumstances mean conduct causing public shame or offensive exposure to the community; private, discreet trysts are generally not “scandalous.”
Cohabitation elsewhere requires living together as husband and wife in another place; this is commonly treated as a continuing offense rather than a series of discrete acts.

2) Procedural Gatekeeping for Prosecution

Adultery and concubinage are private crimes. They have special filing rules that are jurisdictional:

Only the offended spouse may initiate the criminal action by sworn complaint (RPC Art. 344). Neither the State nor other relatives can start the case. If the offended spouse dies before filing, prosecution cannot be commenced.
The complaint must include both offenders (e.g., wife and paramour; husband and concubine) if they are alive and known. A case against only one of them is subject to dismissal for non-joinder.
Consent (prior permission) or pardon (post-act forgiveness) by the offended spouse bars prosecution. It must be given before the criminal action is instituted; forgiveness after filing does not stop the case.
Venue/Jurisdiction: First-level courts (MTC/MTCC/MCTC) have original jurisdiction because the maximum penalties do not exceed six years. Venue is generally where the act (or any act) occurred, or for cohabitation/keeping a mistress, where the conjugal dwelling or cohabitation is situated.

3) Prescription (Time Limits)

As a rule, offenses punishable by prisión correccional prescribe in 10 years.
For these private crimes, jurisprudence recognizes that prescription is computed from the offended spouse’s discovery of the offense, not merely from the date of commission. Prompt filing after discovery is therefore critical.

4) Defenses and Doctrinal Nuances

Invalid or void marriage: If the “marriage” is judicially declared void (or did not validly exist) at the time of the acts, liability for adultery/concubinage generally does not attach. A later declaration of nullity does not retroactively erase criminal liability for acts committed while the marriage enjoyed presumption of validity.
Paramour’s lack of knowledge (adultery): If the man reasonably believed the woman was single (or divorced in a way recognized by Philippine law), he is not liable; the married woman may still be.
Separation is not a defense: De facto separation or even a decree of legal separation does not dissolve the marriage; sexual relations with another remain punishable until the marriage is dissolved (death; or judicial declaration of nullity/annulment; or a foreign divorce recognized under Family Code Art. 26 for mixed marriages).
No attempted or frustrated stages: Adultery and the “intercourse” mode of concubinage are consummated upon sexual intercourse; there are no attempted/frustrated forms.
Consent/pardon scope: Consent or pardon must be directed to the offense; it typically benefits both participants. It should be clear, and certainly before the case is filed.

5) Civil Liability and Collateral Consequences

Civil liability ex delicto

Upon conviction, civil liability (e.g., moral, exemplary, and sometimes actual damages) may be awarded to the offended spouse as part of the criminal case unless expressly waived or reserved for a separate civil action.

Independent civil actions (Civil Code)

Even without or aside from a criminal conviction, the offended spouse may sue for damages under:

Article 19 (abuse of rights),
Article 20 (willful or negligent acts contrary to law),
Article 21 (acts contra bonos mores / contrary to morals, good customs, or public policy).

These have been used to claim damages against the unfaithful spouse and, in proper cases, against the paramour/mistress for wrongful interference with marital relations. (Standards vary by facts: the more overt and injurious the conduct, the stronger the case; mere private consensual relations without aggravating public behavior have weaker prospects.)

Family Code repercussions (outside the criminal case)

Legal separation on the ground of sexual infidelity can entail forfeiture of benefits in favor of common children, and disqualification of the offending spouse from inheriting intestate from the innocent spouse, among other consequences (e.g., revocation of donations propter nuptias, loss of parental authority in some circumstances).

6) VAWC (R.A. 9262) and Marital Infidelity

Marital infidelity can also trigger liability under the Anti-Violence Against Women and Their Children Act (R.A. 9262):

Who may be accused: Typically, a husband, former husband, or intimate/dating partner of the woman complainant. (The law protects women and their children; it does not create criminal liability for a mistress vis-à-vis the wife under VAWC.)
Theory: Infidelity may constitute psychological violence (Section 5(i)) if it causes the woman mental or emotional anguish, public ridicule or humiliation. Proof of actual psychological harm is required (e.g., credible testimony, medical/psychological evaluation, or corroborating circumstances). Infidelity alone is not automatically VAWC; the prosecution must prove the causal link to psychological harm.
Relief: Criminal penalties, and protection orders (Barangay, Temporary, Permanent) that can restrain further harmful acts and provide practical relief (custody, support, residence directives).

Important: VAWC and adultery/concubinage are distinct. They may be pursued in parallel if the facts support both, or a complainant may strategically choose one avenue depending on objectives (immediate protection vs. penal accountability).

7) Evidence: Practical Do’s and Don’ts

Do:

Secure the marriage certificate.
Preserve lawful digital evidence (messages, emails, public social-media posts), hotel or lease records, photographs taken without violating privacy or anti-wiretapping laws, and testimony of witnesses (neighbors, household staff, etc.).
For concubinage, document habitual presence in the conjugal home, cohabitation, or public/scandalous sexual conduct (receipts, joint leases, deliveries, neighbors’ observations).

Don’t:

Illegally record private conversations or calls. The Anti-Wiretapping Law (R.A. 4200) generally prohibits recording private communications without consent of all parties. Illegally obtained recordings are typically inadmissible and may expose the recorder to liability.
Conduct unlawful searches or break into devices/accounts; evidence obtained by hacking or coercion is vulnerable to exclusion and may be criminal.

On proof of intercourse: Direct eyewitness proof is rare; courts accept strong circumstantial evidence (e.g., repeated clandestine meetings leading to an overnight stay in circumstances logically pointing to intercourse). For adultery, pregnancy alone is not conclusive proof of a specific act with a particular man.

8) Procedural Roadmap for Complainants

Consult counsel to assess viable charges (adultery/concubinage, VAWC, or both) and remedies (criminal, civil, protection orders).
Prepare a sworn complaint (include both the spouse and the paramour/mistress if alive and known).
Attach essential documentary proof (marriage certificate, IDs, evidence logs, witness affidavits).
File with the Office of the City/Provincial Prosecutor having venue; attend preliminary investigation.
If an Information is filed, the case proceeds to the first-level court; bail is generally as a matter of right.
Consider civil damages within the criminal case or reserve the right to file a separate civil suit.
If safety is an issue, request Protection Orders under R.A. 9262.

9) Liability Map at a Glance

Actor	Adultery	Concubinage	VAWC (RA 9262)	Civil Code Damages (Arts. 19/20/21)
Married woman	Principal, same penalty as paramour (if he knew)	—	Possible victim	Possible defendant if she commits actionable wrongful acts
Paramour of married woman	Liable only if he knew she was married	—	—	Possible defendant (facts-dependent)
Married man	—	Principal (minimum–medium prisión correccional)	Potential accused if his infidelity causes psychological violence	Possible defendant
Mistress/concubine	—	Punished with destierro	Not covered as accused under 9262 vis-à-vis the wife	Possible defendant (facts-dependent)
Offended spouse	Exclusive complainant; consent/pardon bars case	Exclusive complainant; consent/pardon bars case	Protected party (women/children)	Possible plaintiff

10) Special Situations

Foreign divorce (Family Code Art. 26): In mixed marriages, a valid foreign divorce that capacities the foreign spouse to remarry may be judicially recognized in the Philippines. Acts after a recognized divorce are not adultery/concubinage; acts before recognition remain actionable.
Death or reconciliation: If the offended spouse dies before filing, the State cannot prosecute. Reconciliation or private settlements after filing do not automatically extinguish criminal liability (unlike a valid pre-filing pardon).
Multiple charges: Because elements differ, the same factual matrix can (in proper cases) support both adultery/concubinage and VAWC, or a criminal case and civil damages. Double jeopardy bars only repeat prosecutions for the same offense.

11) Common Pitfalls

Filing against only one participant when both are alive and known.
Relying on illegally obtained recordings.
Assuming “separation” or “annulment filed” is already a defense (it’s not, unless there’s a final judgment affecting marital status applicable at the time of the acts).
Treating VAWC as automatic upon proof of infidelity—psychological harm and causal nexus still need to be proven.

12) Quick Compliance Checklists

For Adultery (prosecution):

☐ Certified marriage certificate of the wife
☐ Evidence of sexual intercourse (direct or strong circumstantial)
☐ Proof that the man knew of the marriage
☐ Sworn complaint by offended husband, naming both accused
☐ No prior consent/pardon; file within prescriptive period (counted from discovery)

For Concubinage (prosecution):

☐ Certified marriage certificate of the husband
☐ Evidence of any of the three modes (conjugal dwelling; scandalous intercourse; cohabitation elsewhere)
☐ Sworn complaint by offended wife, naming both accused
☐ No prior consent/pardon; timely filing (from discovery)

For VAWC—Psychological Violence:

☐ Relationship covered by R.A. 9262 (husband, former husband, or intimate partner)
☐ Proof of infidelity-linked acts AND resulting psychological harm (testimony + professional evaluation, if feasible)
☐ Prayer for Protection Orders if needed

13) Policy Notes and Reform Trajectory

The adultery/concubinage framework is gender-asymmetric: adultery penalizes a married woman’s single act of intercourse; concubinage narrows a married man’s liability to specific modes and, historically, imposes a lighter penalty and destierro for the concubine.
Multiple reform proposals have sought to gender-neutralize or replace these with a single offense of marital infidelity. As of mid-2024, the classical RPC provisions remain in force.

14) Bottom Line

Adultery and concubinage are tightly defined, complaint-driven private crimes.
Consent or pardon before filing forecloses prosecution; inclusion of both participants is mandatory if living and known.
VAWC can apply where infidelity causes psychological violence, and civil damages may be pursued under the Civil Code.
Sound case strategy turns on status proof, lawful evidence, timely filing from discovery, and, where protection is urgent, VAWC remedies.

If you want, tell me your factual scenario and goals (punitive accountability, immediate protection, compensation, or a combination), and I’ll map out a tailored strategy and document checklist.