Overview

In the Philippines, marital separation—whether informal (“hiwalay” / de facto) or by written agreement—does not end the marriage. Unless the marriage has been annulled, declared void, or dissolved by a valid foreign divorce that is recognized in the Philippines (in limited situations), the spouses remain married. That means criminal liability for adultery or concubinage can still arise even if the spouses have long been separated.

The complication is not usually whether the case is “allowed,” but whether Philippine authorities and courts have jurisdiction and whether the case is practically prosecutable when the spouse (and/or the third party) is living abroad.

1) The Crimes: What They Are and What Must Be Proven

A. Adultery (Revised Penal Code)

Who can commit it: a wife who has sexual intercourse with a man not her husband, and the man who has sexual intercourse with her knowing she is married.

Key points:

Adultery is committed by a single act of sexual intercourse.
Each act can be charged, but prosecutors often focus on provable incidents within the prescriptive period.
The male partner must know she is married.

Proof issues: direct proof is rare; cases often rely on strong circumstantial evidence showing opportunity and intimacy.

B. Concubinage (Revised Penal Code)

Who can commit it: a husband under any of these situations:

Keeping a mistress in the conjugal dwelling, or
Having sexual intercourse under scandalous circumstances with a woman not his wife, or
Cohabiting with such woman in another place.

Key points:

Concubinage is not proven by mere suspicion or rumors of a relationship.
Depending on the mode, you may need proof of cohabitation or scandalous circumstances, not just a dating relationship.

2) “Separated” Spouses: Does Separation Change Anything?

De facto separation (living apart, no longer acting as spouses) does not bar adultery/concubinage.

What can bar the criminal case is usually one of the following:

The marriage is no longer valid at the time of the acts (e.g., annulment/void declaration already final before the alleged acts), or
The offended spouse consented to the infidelity, or
The offended spouse pardoned the offending spouse (and this has legal effect—see below).

3) The Special Rule: These Crimes Require a Complaint by the Offended Spouse

Adultery and concubinage are not prosecuted like ordinary crimes. The law requires:

A complaint filed by the offended spouse (the husband in adultery cases; the wife in concubinage cases), and
The complaint must generally be against BOTH guilty parties (the spouse and the third party), if both are alive and identifiable.

Why this matters when your spouse is abroad

If you file against only your spouse but not the third party (without a legally acceptable reason), the case may be dismissed.
If the third party’s identity is unknown, you typically must show efforts to identify them and amend once identified.

4) Jurisdiction and “Living Abroad”: The Biggest Legal and Practical Issues

A. Territoriality (Where the crime happened matters)

Philippine criminal law is generally territorial: Philippine courts prosecute crimes committed within Philippine territory, with narrow exceptions (which do not normally include adultery/concubinage).

Practical implication:

If the alleged adultery/concubinage acts occurred entirely abroad, a Philippine adultery/concubinage case is often not viable due to lack of Philippine territorial jurisdiction.
If some act or element relevant to the crime occurred in the Philippines (e.g., cohabitation in a Philippine residence; keeping a mistress in the conjugal dwelling in the Philippines; scandalous circumstances occurring in public in the Philippines), then Philippine prosecution is more plausible.

B. Even if you can file, can you actually prosecute?

Criminal cases require the accused to be brought under the court’s jurisdiction (usually by arrest or voluntary appearance). A spouse living abroad may be beyond reach.

What typically happens:

You may be able to file the complaint and even secure an arrest warrant if probable cause is found.
But if the accused stays abroad, the case can stall until they return or are otherwise brought within reach.
Extradition is usually not realistic for these offenses in many situations.

5) Venue: Where to File in the Philippines

You generally file where the crime was committed. Examples:

If the adultery occurred in a specific Philippine city/municipality: file there.
For concubinage based on cohabitation: where they cohabit.
For “mistress in the conjugal dwelling”: where the conjugal dwelling is located.

If the acts are abroad: venue becomes a major problem because Philippine prosecutors/courts typically require a Philippine locus of the crime.

6) Prescription (Time Limits)

Adultery and concubinage prescribe after the period applicable to their penalties (both are correctional offenses), and prescription is counted following the rules on when the offense is discovered/known and when proceedings are initiated/interrupted.

Practical takeaway: do not delay. If you are considering filing, talk to counsel quickly to assess dates and evidence so you don’t lose the case on prescription grounds.

7) Evidence: What You’ll Need (and What to Avoid)

A. Useful evidence (common examples)

Admissions (messages, emails, written statements)
Photos/videos showing the relationship plus context (time, place, continuity)
Travel records, hotel records (lawfully obtained), receipts
Witness testimony (neighbors, household staff, building admin, security logs)
Proof of cohabitation (leases, bills, barangay certifications, deliveries, consistent presence)
For concubinage “scandalous circumstances”: proof of public notoriety and offensive public conduct (not mere gossip)

B. Evidence from abroad

Foreign documents often need proper authentication (commonly via consular notarization or apostille, depending on where they come from and admissibility requirements). A lawyer can guide you on how to make foreign documents usable in Philippine proceedings.

C. What to avoid

Illegal wiretapping/recording of private communications without consent (this can create criminal exposure and make evidence unusable).
Hacking, impersonation, unlawful access to accounts.
Harassment, threats, doxxing, or public shaming that could expose you to liability.

8) The “Consent” and “Pardon” Traps (These Can Kill the Case)

These crimes can be blocked if the offended spouse:

Consented to the infidelity (prior permission/approval), or
Pardoned the offending spouse (and/or the third party) after learning of the offense.

Notes:

Pardon can be argued as express or implied depending on acts after knowledge of the infidelity (context matters a lot).
In some situations, continuing to accept the arrangement, reconciling, or other conduct after learning of the affair can be used by the defense—fact-specific, and heavily litigated.

9) Step-by-Step: How the Case Is Filed

Step 1: Case assessment (jurisdiction + evidence)

Before filing, determine:

Where did the acts happen—Philippines, abroad, or both?
Can you identify the third party?
Can you prove at least one prosecutable instance within time limits?

Step 2: Prepare your complaint-affidavit and attachments

You typically submit:

Complaint-affidavit narrating facts clearly, chronologically
Evidence and witness affidavits (if available)
Proof of marriage (marriage certificate)
Any supporting records

Step 3: File with the Office of the City/Provincial Prosecutor (or appropriate prosecutor’s office)

The prosecutor conducts preliminary investigation (or the appropriate process) to determine probable cause.

Step 4: If probable cause is found

An Information is filed in court. The court may issue a warrant of arrest.

Step 5: Arrest / appearance + arraignment + trial

If the accused remains abroad, proceedings often cannot move normally because:

Arraignment typically requires presence.
Trial in absentia is generally only possible after arraignment and under specific conditions.

10) If Your Spouse (or You) Is Abroad: Execution and Filing Logistics

If you (the complainant) are abroad

You can often execute a complaint-affidavit abroad through:

A Philippine embassy/consulate (consular notarization), or
Proper foreign notarization with the needed authentication route for Philippine use.

You still need to file in the correct venue/prosecutor’s office in the Philippines, usually through counsel or a representative—subject to the requirement that the case is initiated via the offended spouse’s complaint.

If your spouse is abroad

Expect these realities:

You may file and obtain warrants, but enforcement is uncertain.
A returning spouse may be arrested at some point if a warrant exists and is entered into appropriate systems.
Long delays can create strategy risks (availability of witnesses, fading evidence, procedural challenges).

11) Common Misconceptions

“We’re separated, so it’s not adultery/concubinage anymore.”

False. Separation does not end the marriage.

“If it happened abroad, I can file here because we’re Filipinos.”

Usually false for these crimes. Territorial jurisdiction is a major barrier.

“I can file against the third party only.”

Usually not. These offenses are typically pursued against both the spouse and the partner (subject to narrow exceptions).

“Screenshots alone are enough.”

Sometimes helpful, often not enough. Courts scrutinize authenticity, context, and whether the evidence proves the legal elements (e.g., intercourse, cohabitation, scandal, knowledge of marriage).

12) Alternatives (Often More Practical Than Adultery/Concubinage When the Spouse Is Abroad)

Depending on your goal (protection, support, custody, property, or ending the marriage), these may be more effective:

Petitions affecting marital status (e.g., nullity/annulment if grounds exist)
Legal separation (does not dissolve marriage but can address property and living arrangements)
Support petitions (spousal/child support)
VAWC (RA 9262) in appropriate circumstances (often used when there is psychological, economic, or other abuse connected to the relationship situation—this is highly fact-specific)
Civil claims for damages in some contexts (consult counsel on viability)

13) Practical Checklist Before You File

✅ Confirm marriage is still valid and subsisting at the time of the alleged acts
✅ Identify where the acts happened (Philippines vs. abroad)
✅ Identify the third party (or document efforts to identify)
✅ Build evidence tailored to the legal elements (intercourse vs. cohabitation/scandal)
✅ Avoid illegal evidence gathering
✅ Act promptly to avoid prescription and evidence loss
✅ Plan for enforcement realities if the accused remains abroad

Bottom Line

You can file adultery or concubinage in the Philippines despite separation, as long as the marriage subsists and the legal requirements are met. But when the spouse is living abroad, the decisive issues become:

Did the punishable acts occur in the Philippines (so Philippine courts have jurisdiction)?
Can the accused be brought under Philippine court jurisdiction (arrest/appearance) so the case can move?
Can you prove the required elements with admissible evidence?

If you tell me these three facts—(a) where your spouse is, (b) where the relationship acts occurred, and (c) whether you know the third party’s identity—I can lay out the most likely workable path (criminal vs. alternative remedies) and what evidence usually makes or breaks the case.