Elements of Adultery and Concubinage in Philippine Law

Introduction

Adultery and concubinage are the only two sexual infidelity crimes that remain punishable under the Revised Penal Code of the Philippines (Act No. 3815). They are classified as crimes against chastity and are found in Articles 333 and 334. These provisions are among the most overtly gender-discriminatory in the entire Philippine legal system: a married woman commits adultery by the mere act of having sexual intercourse with a man not her husband, while a married man commits concubinage only under specific aggravating circumstances that require a higher threshold of proof.

The law reflects the Spanish colonial moral framework and the 1930s patriarchal values of the Philippine legislature. Despite repeated calls for repeal or equalization from the Women’s Movement, the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW), and various bills filed in Congress, both crimes remain in force as of December 2025.

Adultery (Article 333, Revised Penal Code)

Definition

Adultery is committed by:

1. A married woman who has sexual intercourse with a man not her husband; and
2. The man who has carnal knowledge of her, knowing her to be married, even if the marriage is later declared void.

Both the woman and the paramour are principals by direct participation and are punished with the same penalty.

Elements

1. The woman is validly married (even if the marriage is voidable or later annulled);
2. She has sexual intercourse with a man not her husband;
3. The man knows at the time of the act that she is married.

Penalty

Prision correccional in its medium and maximum periods (2 years, 4 months and 1 day to 6 years) for both the guilty wife and the paramour.

Important Doctrinal Rules and Jurisprudence

• One single act of sexual intercourse is sufficient to consummate the crime (People v. Zapata and Bondoc, G.R. No. L-3047, May 16, 1951).
• There is no “crime of frustrated adultery” or “attempted adultery.” The crime is consummated by the carnal act itself.
• Proof of actual penetration is not required; any degree of genital contact sufficient to produce carnal knowledge is enough.
• Circumstantial evidence is admissible and often sufficient (e.g., love letters, hotel receipts, photographs of intimate acts, testimony of witnesses who saw the spouses separately entering a motel and emerging hours later).
• Pregnancy of the wife during a period of prolonged separation is strong evidence, but not conclusive.
• The offended husband may file the complaint even if he himself is guilty of concubinage or adultery in another relationship (pardoning the wife does not require him to be morally clean).
• Condonation or forgiveness by the offended spouse (express or implied) extinguishes criminal liability. Continued cohabitation after knowledge of the adultery is presumed condonation unless proven otherwise.
• Death of the offended spouse before filing abates the criminal action.
• The crime prescribes in 10 years (Act No. 3326, as amended).

Concubinage (Article 334, Revised Penal Code)

Definition

Concubinage is committed by any husband who:

1. Keeps a mistress in the conjugal dwelling; or
2. Has sexual intercourse, under scandalous circumstances, with a woman who is not his wife; or
3. Cohabits with her in any other manner.

Elements (by Mode)

First mode – Keeping a mistress in the conjugal dwelling

1. The man is married;
2. He keeps a mistress (paramour);
3. The mistress is kept in the conjugal dwelling (the house owned or occupied by the legitimate family).

Second mode – Sexual intercourse under scandalous circumstances

1. The man is married;
2. He has sexual intercourse with a woman not his wife;
3. The sexual intercourse is under scandalous circumstances (i.e., open, notorious, and causes public outrage or scandal to the family).

Third mode – Cohabitation

1. The man is married;
2. He cohabits (lives as husband and wife) with a woman not his wife;
3. The cohabitation may be in any place (not necessarily the conjugal dwelling).

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: Destierro (banishment from a radius of at least 25 kilometers from the wife’s residence, duration same as husband’s imprisonment) only when the husband is convicted.

Important Doctrinal Rules and Jurisprudence

• Mere sexual intercourse outside the conjugal dwelling without scandalous circumstances does not constitute concubinage (People v. Pitoc, G.R. No. L-18694, October 31, 1962; People v. Santos, G.R. No. L-13027, May 26, 1960).
• “Scandalous circumstances” is appreciated when the affair is so publicly known that it causes social disapproval (e.g., openly living together in a condominium, introducing the mistress as wife in public, having children openly acknowledged).
• Occasional or isolated sexual acts, even if repeated, do not amount to cohabitation unless there is proof of living together as husband and wife.
• Maintaining the mistress in a love nest or separate apartment is usually considered cohabitation (third mode).
• The wife cannot file for concubinage if the acts were done discreetly without public scandal.
• The concubine is punished only with destierro and only when the husband is convicted. If the husband is acquitted, the concubine is automatically acquitted.

Comparative Table: Adultery vs. Concubinage

Aspect	Adultery (Wife)	Concubinage (Husband)
Number of acts required	One single act	Multiple acts or continuing situation
Place	Any place	Conjugal dwelling (1st mode) or any place with scandal/cohabitation
Proof of scandal required	No	Yes (2nd mode) or cohabitation (3rd mode)
Penalty for guilty spouse	Prision correccional med/max (2y4m1d–6y)	Prision correccional min/med (6m1d–4y2m)
Penalty for paramour	Same as guilty spouse	Destierro only
Who may file complaint	Only offended husband	Only offended wife
Equal punishment for paramour	Yes	No

Procedural Aspects Common to Both Crimes

1. Private crimes – Complaint must be filed by the offended spouse personally (not through fiscal or police). A third party (even children) cannot initiate the case.
2. Only one offended spouse – If both spouses are guilty of infidelity, neither can file against the other (the “doctrine of pari delicto” in criminal law).
3. Affidavit of desistance after filing does not automatically dismiss the case, but courts usually consider it favorably.
4. Marriage must be proven by the original or certified true copy of the marriage contract; judicial notice is not allowed.
5. Both crimes are bailable (bail range ₱24,000–₱60,000 depending on court).
6. Conviction for adultery or concubinage is a ground for legal separation under Article 55(6) of the Family Code and may affect custody and property relations.

Civil Consequences of Conviction

• The guilty spouse forfeits rights to:
  • Support from the innocent spouse;
  • Share in the net profits of the community or conjugal partnership;
  • Custody of minor children (court may award to innocent spouse or third person in the best interest of the child).
• The innocent spouse may also revoke donations made to the guilty spouse (Article 64, Family Code) and disqualify the guilty spouse from inheriting intestate (Article 1028, Civil Code, in relation to Article 739 on unworthy heirs).

Current Status and Reform Attempts

As of December 2025, Articles 333 and 334 remain unrepealed. Bills seeking to decriminalize adultery and concubinage or to equalize the treatment of men and women (e.g., House Bill No. 703 by Rep. Geraldine Roman, Senate Bill No. 125 by Sen. Risa Hontiveros in previous Congresses) have repeatedly failed to prosper. The Supreme Court has consistently upheld the constitutionality of the provisions, ruling that the classification is based on substantial distinctions (People v. Ellevera, G.R. No. 133665, March 22, 2000, denying motion for reconsideration of earlier rulings).

In practice, prosecutions are now extremely rare. Most offended spouses use psychological violence provisions under Republic Act No. 9262 (Anti-VAWC Law) or file civil cases for legal separation or declaration of nullity instead of pursuing the criminal route, which requires proof beyond reasonable doubt and personal filing of the complaint.

These two crimes remain the last vestiges of overt gender discrimination in the Philippine penal code, surviving primarily because of conservative opposition rather than any strong public demand for their retention.