Adultery and concubinage remain two of the few surviving gender-specific sexual offenses in the Revised Penal Code of the Philippines (Act No. 3815, as amended). They are classified as crimes against chastity under Title Eleven and are private crimes, meaning they can only be prosecuted upon complaint initiated by the offended spouse. Both offenses continue to be punishable as of December 2025, despite repeated legislative attempts to decriminalize or equalize them.
The laws are contained in Articles 333 and 334 of the Revised Penal Code, which have remained substantially unchanged since 1932.
Adultery (Article 333, Revised Penal Code)
Elements
- The woman is validly married (even if the marriage is subsequently declared void ab initio, the crime is still consummated if the intercourse occurred while the marriage was presumed valid);
- She has sexual intercourse with a man not her husband;
- The man who has carnal knowledge of her knows that she is married at the time of the act.
All three elements must concur. A single act of sexual intercourse is sufficient. No requirement of scandal, cohabitation, or keeping a mistress exists.
Punishable Acts
Only one act: voluntary sexual intercourse between the married woman and the paramour who knows of her marital status.
Penalty
Both the guilty wife and the paramour are punished by prision correccional in its medium and maximum periods (2 years, 4 months and 1 day to 6 years).
Who May File the Complaint
Only the offended husband may file the complaint. The complaint must include both the wife and the paramour; the husband cannot selectively prosecute only one of them (People v. Santos, G.R. No. L-11377, March 30, 1917; long line of jurisprudence).
Concubinage (Article 334, Revised Penal Code)
Elements
The offender is a legally married man who:
- Keeps a mistress in the conjugal dwelling; OR
- Has sexual intercourse, under scandalous circumstances, with a woman who is not his wife; OR
- Cohabits with a woman who is not his wife in any other place.
Unlike adultery, a single act of sexual intercourse is NOT sufficient unless it is committed under scandalous circumstances.
Definitions Established by Jurisprudence
- “Keeping a mistress in the conjugal dwelling” – the mistress lives in the marital home as if she were a wife, even without sexual relations (People v. Pitoc, G.R. No. L-18694, October 31, 1962).
- “Scandalous circumstances” – the intercourse is open, publicized, or offends public decency, or is known in the community (People v. Cordez, G.R. No. L-12283, May 30, 1960). Mere clandestine intercourse in a motel is generally not scandalous.
- “Cohabitation” – living together as husband and wife in a place other than the conjugal dwelling for a certain period (not necessarily continuous sexual relations, but a continuing relationship).
Penalty
- For the husband: prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months).
- For the concubine/mistress (if she knew he was married): destierro (banishment from a certain radius of the offended wife’s residence, usually 25–250 km for the duration of the penalty).
The wife may choose to charge only the husband and omit the mistress.
Key Differences Between Adultery and Concubinage
| Aspect | Adultery (Wife) | Concubinage (Husband) |
|---|---|---|
| Required act | One sexual intercourse | Scandal, keeping mistress, or cohabitation |
| Proof of knowledge of marriage | Required for the man | Required for the concubine (for her penalty) |
| Penalty for guilty spouse | Prision correccional med/max (up to 6 yrs) | Prision correccional min/med (up to 4 yrs 2 mos) |
| Penalty for paramour/concubine | Same as guilty spouse | Only destierro |
| Complaint requirement | Must charge both offenders | May charge husband alone |
These differences have repeatedly withstood equal protection challenges. The Supreme Court has consistently ruled that the classification is based on substantial distinctions (biological differences in certainty of paternity, protection of the family, etc.) and is therefore constitutional (Ginebra v. People, G.R. No. 229860, October 15, 2018, and earlier cases).
Procedural and Substantive Rules Common to Both Crimes
Private crimes – Only the offended spouse can file the complaint (Article 344, RPC). Parents, grandparents, or guardians may file in case of seduction, abduction, rape, or acts of lasciviousness involving minors, but not for adultery/concubinage.
Pardon and condonation
- Express pardon (written or sworn) or implied pardon (continued cohabitation after knowledge of the offense) extinguishes criminal liability for both offenders.
- Once pardoned, the offense cannot be revived.
- Pardon by the offended spouse after filing of the complaint operates as an absolute bar to further prosecution.
Marriage of the offenders
If the adulterous/adulteress or concubine and paramour subsequently marry each other, the crime is extinguished (Article 89, RPC – extinguishment by marriage of the offended party with the offender in private crimes).Death of offended spouse
The right to file the complaint is personal and is extinguished upon the death of the offended spouse (even if heirs know of the offense).Prescription
Both crimes prescribe in 10 years (Act No. 3326, as amended by Act No. 3763 – correctional penalties prescribe in 10 years).Evidence required
Proof beyond reasonable doubt is required. Circumstantial evidence is admissible but must be incompatible with innocence. Mere suspicious circumstances (love letters, hotel registrations under false names, etc.) are usually insufficient without proof of carnal knowledge.Effect of legal separation or annulment
The decree of legal separation or nullity does not retroactively erase the crime if the act was committed while the marriage was valid.
Current Status and Legislative Attempts (as of December 2025)
Articles 333 and 334 remain in force. Multiple bills seeking to repeal or equalize the penalties (e.g., making both offenses require the same elements and penalties) have been filed in every Congress since the 9th (1992–1995) but have never passed into law. The most recent serious attempts were House Bill No. 8539 (18th Congress) and similar bills in the 19th Congress, none of which became law.
The continued retention of these provisions is often justified on cultural, religious, and traditional grounds, though criticized by women’s rights advocates as discriminatory and outdated.
Practical Notes for Practitioners
- Adultery cases are extremely rare in actual prosecution due to the difficulty of proof and the social consequences of publicizing marital infidelity.
- Most spouses now use adultery or concubinage as grounds for legal separation under Article 55 of the Family Code or psychological incapacity under Article 36 rather than pursuing criminal prosecution.
- RA 9262 (Anti-VAWC Law) has largely superseded concubinage in practice when the extramarital relationship is accompanied by economic abuse, emotional abuse, or violence.
These two articles represent one of the last vestiges of explicitly gender-discriminatory criminal provisions in Philippine law, yet they persist despite decades of feminist advocacy for their repeal.